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t SI 7 



ARTES SCIBMTIA VERITAS 



42 Victoria^ Sessional Papers (No. 42) A. 1879 



T«.,K«.-« RETURN TO ADDRESS. 

libwrv 

HE 

T-SIO 



\^19 PAPERS EELATING TO THE CLAIMS OF 



MURRAY & CO., 



CONTRACTORS, 






INTERCOLONIAL RAILWAY, 



AND THE DECISION OF MR. SAMUEL KEEPER, THE SOLE 

ARBITRATOR THERhlON. 



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OTTAWA t 

PRINTED B7 MACLEAN ROGER k CO., WELLINGTON STREET. 

UNIVERSITY OF MICHIGAN LIBRARIES 



rtil 



Victoria. Sessional Papers (No. 42.) A. 1879 



H£ 

RETURN ^aio 

(42i) c » a 



;— Fo 



an Address of the House of Commons dated 2nd April, 1879 ; — mr 

copies of all papers relating to the disputed claims of Messrs. Mnrray 

& Co., contractors on the Intercolonial Railway, embracing a statement 

of such claims ; the estimates of material removed or placed and work 

performed, as made by the G-ovemment Engineer, and shewing the 

amount of contract and the payments thereon ; also copies of all pai)er8 

and Orders in Council relating to or authorizing the submission of such 

claims to arbitration, and the decision of Mr. Samuel Keefer, the sole 

arbitrator thereon. 

Bv Command. 

J. C. AIKINS, 

Secretary oj State. 
Apartment of the Secretary of State, 
Ottawa, 6th May, 1879. 



IN THE EXCHEQUEK COUET OF CANTADA. 



TO THE queen's MOST EXCELLENT MAJESTY. 



} 



Bounty of Caulbton, 

To Wit : 

\q humble petition of John E. Murray, of the City of Halifax, in the Province ol 
Nova Scotia, Merchant (surviving partner of the firm of Thomas Baggs and 
Company, of the same place. Merchants), by his Attorney, George J. O'Doherty, 
of the City of Ottawa, in the County of Carleton, in the Province of Ontario, 
Esquiro, 

Sheweth that, on or about the fifteenth day of June, in the year of our Ij««<L<5k^<^ 
bousand eight hundred and seventy, and by an vci^etAsat^ q>1 ^-^ $ia^<6^ ^^s^^'^'^aas^as^ 
arker TiicJr, of the City of St. John, in t\i^ ^YQV\na^ ^\ ^'s^, ^^""^^^ 
ivil Engineer, entered into a contract mt\iB.^TllL«.\b^\N ^jv^«^'^v4w3^^%^^'SF^ 
42 z—1 



42 Victoria. Sessional Papers (No. 42.) A. 1S79 



TiaMportatioj) 

HE 

RETURN '^aio 

(42i) c \ a 



;— Fo 



To an Address of the House of Commons dated 2nd April, 1879 ; — For 

copies of all papers relating to the disputed claims of Messrs. Murray 

& Co., contractors on the Intercolonial Railway, embracing a statement 

of such claims ; the estimates of material removed or placed and work 

performed, as made by the G-overnment Engineer, and shewing the 

amount of contract and the payments thereon ; also copies of all papers 

and Orders in Council relating to or authorizing the submission of such 

claims to arbitration, and the decision of Mr. Samuel Keefer, the sole 

arbitrator thereon. 

Bv Command. 

J. C. AIKINS, 

Secretary oj State. 
Department of the Secretary of State, 
Ottawa, 6th May, 1879. 



IN THE EXCHEQUEK COUET OF CANADA. 



TO THE queen's MOST EXCELLENT MAJESTY. 



} 



County op Caulbton, 

To Wit : 

^^^ humble petition of John E. Murray, of the City of Halifax, in the Province ol 
Nova Scotia, Merchant (surviving partner of the firm of Thomas Baggs and 
Company, of the same place, Merchants), by his Attorney, George J. O'Doher^, 
of the City of Ottawa, in the County of Carleton, in the Province of Ontario, 
Bsquiro, 

Sheweth that, on or about the fifteenth day of June, in the year of our Lord one 
^^Usand eight hundred and seventy, and by an indenture of that date, one Samuel 
p*i*k©r Tuck, of the City of St. John, in the Province of New Brunswick, 
^Ml Engineer, entered into a contract with Her Majesty Queen Victoria, represented 



42 Victoria. Sesrional Papers (No. 42,) A. 187£ 



therein by Aquila Walsh, Esq., M.P., the Honorable Edward Barron Chandler, Charles 
John Brydges, Esquire, and the Honorable Archibald Woodbury McLelan, Commis- 
sioners appointed under and by virtue of an Act of the Parliament of Canada, passed 
in the Session hold in the thirty-first year of Her Majesty's reign, intituled, '^ An Act 
respecting the construction of the Intercolonial Eailway,'* — therein designated the 
Commissioners — which said contract, together with the schedule therein referred to 
and thereto attached, is in the words and figures, or to the effect following, that is to 
say: 

This Indenture, made t'ais fifteenth day of June, in the year of our Lord one 
thousand eight hundred and seventy, between Samuel Parker Tuck, of the City of St. 
John, in the Pix)vince of New Brunswick, in the Dominion of Canada, Civil Engineer, 
(hereinafter designated as the contractor), of the first part, and Her Majesty Queen 
Victoria, represented herein by Aquila Walsh, E?q., M.P., the Honorable Edward 
Barron Chandler, Charles John Brydges, Esquire, and the Honorable Archibald 
Woodbury McLelan, Commissioners appointed under and by virtue of an Act of the 
ParliamcMt of Canada, passed in the Session held in the thirty-first year of Her 
Majesty's reign, intituled, " An Act respecting the construction of the Intercolonial 
Eailway," — hereinafter designated as the Commissioners — of the second part. 

Whereas, it was and is in and by the said cited Act, amongst other things, 
enacted and provided that there shall be a railway constructed, connecting the Port 
of Eiviere du Loup, in the Province of Quebec, with the line of railway leading 
from the City of Halifax, in the Province of Nova Scotia, at or near the Town of 
Truro, and that such railway shall be styled and known as " The Intercolonial Eail- 
way." That such railway shall be public work, belonging to the Dominion of Canada; 
and shall be made with a guage of five feet six inches, and on such grades and in such 
places, in such manner, with such materials, and on such specifications as the Governor 
in Council shall determine and appoint, as best adapted to the general interests of the 
Dominion. And further, that the construction of the said railway and its manage- 
ment, until completed, shall be under the charge of four Commissioners with the 
powers and duties provided by the said Act. And whereas, the said Aquila Walsh, 
Edward Barron Chandler, Charles John Brydges, and Archibald WoodburyMcLelan, 
have been duly appointed such Commissioners, and in the discharge of the duties 
imposed on them by the said Act, have duly advertised for tenders for the construc- 
tion of certain portions of the said railway, including the portion hereinafter des- 
cribed, and designated as " Section No. 19," and the tender of the contractors for the 
construction of such Section No. 19, in the manner hereinafter set forth, has been 
accepted, and the contractors have, in consequence, agreed (by and with the sanction 
of the Governor in Council, as provided by the said Act) with the Commissioners to 
construct and complete the said Section No. 19 of the said railway, and to supply all 
proper and requisite materials therefor, upon the terms and subject to the conditions, 
stipulations and agreements hereinafter contained. 

Now this Indenture witnesseth, that, in consideration of the sura of three hun- 
dred and ninety-five thousand seven hundred and thirty-three dollars (8395,733) of 
lawful money of Canada, to be paid to the contractor, his heirs, executors, adminis- 
trators and assigns, by Her Majesty, her heirs or successors, in manner hereinafter 
mentioned, the contractor doth hereby, himself, and for his heirs, executors and 
administrators, covenant, promi; o and agree to and with Her Majesty, her heirs and 
successors, in manner following, ihat is to say: 

1. He, the contractor, i^all and will, well and truly and faithfully, make, build, 
construct and complete that portion of the railway known as Section No. 19, and 
more particulary described as folio w^s, to wit: — Commencing at the easterly end of 
Section No. 18 (section numbered eighteen) of the said Kailway, and extending 
thence down the Metapedia Yalley to its mouth, and thence across the Eiver JResti- 
gouche to Station No. 370 (station numbered three hundred and seventy), on the 
said railway, the same bein*^- at the westerly end of Section No. 3 (section numbered 
three), of the said railway (ihe easterly end of the said Section No. 18 being in the 
Province of Quebec, and the westerly end of Section No. 3 being in the Province of 

2 



42 Victoria. Sessional Papers (No. 42^ A. IS 79 



iPTew Brunswick), including the bridge over the said River Restigoueho, the srid 
Section No. 19 being nine miles and one-third of a mile, more or less, in length, and 
all the bridges, culverts and other worlcs appurtenant thereto, to the entire satisfac- 
tion of the Commissioners, and accordini> to the plans and specifications thereof, 
signed by the Commissioners and the contractor, the plans whereof so signed are 
deposited in the office of the Commissioners in the City of Ottawa, and the specifica- 
tion whereof so signed is hereto annexed, and marked " Schedule A.'* which specifica- 
tion is to be considered and read as part hereof, and as if embodied and forming part 
of this contract. But nothing herein contained shall be construed to require the 
contractor to provide the right of way for the construction of the railway. 

2. The contractor shall be bound to provide all proper tools, plant and materials 
for the execution of the works, and shall be responsible for the sufficiency of the 
same j he shall take upon himself the entire responsibility of the centering, scaffold- 
ing, and all other means used for the fulfillment of the contract, whether such means 
may or may not be approved or recommended by the Engineer, and the contractor 
shall alone suffer loss, and shall indemnify and hold harmless Her Majesty and the 
Commissioners from loss arising from, and shall run all risk of accidents or damages, 
from whatever cause ihey may arise, until the completion of the contract. The con- 
tractor shall also be responsible for all damages claimable by the owners or occupants 
of lands, arising from loss of crops or cattle, or injury thereto, respectively, sustained 
by any cause or thing connected with the construction of the work, or through any 
of his agents or workmen, and he shall be responsible for all damage which may be 
done to property or persons through the blasting of rocks, or other operations carried 
on by them; and he shall assume all risks and contingencies that may arise during 
the progress of the works, and shall make good all defects and failures, whether from 
negligence on the part of themselves or their agents or workmen, or from bad work- 
manship or the use of improper materials ; and they shall hold harmless, and indem- 
nify Her Majesty from all claims, losses or damages in respect thereof. The con- 
tractor shall, subject to the approval of the Engineer as to the same, make all neces- 
sary temporary provision during ^he progress of the works for the ownera or 
occupants of land!s crossing the line of railway, and sh&ll provide the necessary 
accommodation for the passage of the public at the intersection of roads or highways, 
and shall also make such provision, until fences be erected, as may be necessary to 
prevent the straying of cattle upon the line of railway. In the event of any bad 
materials being delivered or worked up, or any bad work being executed at any 
time, the same shall be immediately removed, on notice being given by the Engineer, 
and the work shall be re-constructed at tho expense of the contractor, in strict con- 
formity with this contract and the said specification, and to the entire satisfaction of 
the Engineer. The contractor shall employ as many competent agents and foremen 
on the whole works as may be considered requisite by the Engineer, and the said 
agents and foremen shall be regurlarly and constantly present on the works, for the 
purpose of effectually overseeing the same and receiving instructions from the Engi- 
neer. The contractor shall respect and preserve in their true and original position 
all bench marks, hubs, all centre, slope, reference and other stakes and marks, placed 
or made by the Engineer, on or near the line of work, and shall adopt every means 
in their power to prevent the same being burned in the clearing, or altered, removed, 
or destroyed at any time ; and, whenever required by the Engineer, they shall furnish 
the necessary assistance to correct or replace any stakes or marks which, through 
any cause, may have been removed or destroyed. The contractor shall not encourage, 
but shall take all lawful means in his power to prevent, the sale of spirituous liquors 
on or in the vicinity of the line of railway. The contractor shall perform and exe- 
cute all the works required to be performed by the contract and the said specifica- 
tion, in a good, faithful, substantial and workmanlike manner, and in strict accord- 
ance with the plans and specifications thereof, and with such instructions as may be 
from time to time given by the Engineer and shall be under the direction and constant 
supervision of such District, Division and Assistant Engineers and Inspectors as may 
he appointed. Should any work, material, or thing of any description whatever, be 

3 



An J It 



42 Victoria. Sessional Papers (Na42) A. IbVi 



omitted from the said specification or the contract, which, in the opinion of tho 
Engineer, is necessary or expedient to be executed or furnished, the contractor shall, 
notwithstanding such omission, upon receiving wiitten directions to that effect'from 
the Engineer, perform and furnish the same. All the works are to bo executed and 
materials supplied to the entire satisfaction of the Commissioners and Engineer, and 
the Commissioners shall be the sole judges of the work and material, and their 
decision on all questions in dispute, with regard to the works or materials, or as to 
the meaning or interpretation of the ej)ecification or the plans, or upon points not 
provided for, or not sufficiently explained in the plans or s])eciiications, is to be final 
and binding on all parties. 

3. The contractor shall commence the works embraced in this contract within 
thirty days from and after the date hereof, and shall diligently and continuously 
prosecute and continue the same ; and the same, respectively, and every part thereof 
shall be fully and entirely completed in every particular, and given up, under final 
certificate, and to the satisfaction of the Commissioners and Engineer, on or before 
the first day of July, in the year of Our Lord one thousand eight hundred and 
seventy-two (time being declared to be material and of the essence of this contract), 
and in default of such completion as aforesaid, on or before the last mentioned day, 
the contractor shall forfeit all right, claim or demand to the sum of money or per- 
centage hereinafter agreed to be retained by the Commissioners, and any and every 
part thereof, as also any moneys whatsoever which may be, at the time of tho 
failure of the completion as aforesaid, due or owing to the contractor, and the con- 
tractoi' shall also pay to Her Majesty, as liquidated damages, and not by way of fine 
or penalty, the sum of two thousand dollars (|2,000), for each and every week, and 
the proportionate fractional part of such sum for each and every part of a week du^ 
ing which the works embraced within this contract, or any portion thereof, shall re- 
main incomplete, or for which the certificate of the Engineer, approved by the Com- 
missioners, shall be withheld, and the Commissioners may deduct and retain in their 
hands such sums as may become due as liquidated damages, from any sum of money 
then due or payable, or to become due or payable thereafter to the contractor, 

4. The Engineer shall be at liberty, at any time before the commencement or 
dtiring the construction of any portion of the work, to make any changes or alterations 
which he may deem expedient m the grades, the lines of location of the railway, the 
width of cuttings or fillings, the dimensions orcharacter of structures, or in any other 
thing connected with the works, whether or not such changes increase or diminish 
the work to be done or the expense of doing the same, and the contractor shall not 
be entitled to any allowance by reason of such changes, unless such changes consist 
in alterations in the grades or the line of location, in which case the contractor ahall 
be subject to such deductions for any diminution of work, or entitled to such allow- 
ance for increased work (as the case may be), as the Commissioners may deem 
reasonable, their decision being final in the matter. The Engineer shall have full 
power to dismiss any foreman, workman, or other person employed, whom he may 
deem unfit for the duties assigned to him, or who may, in the opinion of the 
Engineer, be guilty of slighting the work, or of wilful disobedience of orders, or 
improper, intemperate or disorderly conduct, and the contractor shall forthwith 
supply the places of all such men so dismissed, and shall not employ them again o;i 
the works . 

5. The contractor shall, by himself, his agents and workmen, faithfully carry out 
the works until completion, and shall not sell, assign or transfer this contract to any 
persons whomsoever without the consent of the Commissioners first had and obtained. 

6. The Commissioners shall have the right to suspend operations at any par- 
ticular point or points, or upon the whole of the works, and in the event of such right 
being exercised so as to cause any delay to the contractor, then an extension of time, 
equal to such delay or detention, shall be allowed him to complete the contract, but 
any such delay shall not vitiate or avoid this contract, or any part thereof, or the 
obligation hereby imposed, or any concurrent or other bond or security for the per- 
formance of this contract, nor shall the same entitle the contractor to any claim for 

4 



42 Victoria. Seesional Papers (No. 42.) A. 1879 



damages, unless the CommissioDers shall otherwise determine, and then only for such 
•am as thej may think fit and equitable. If at any time daring the progress of the 
works it should appear that the force employed, or the rate of progress then being 
made, or the general character of the work being performed, or the material supplied 
or furnished, are not such as to ensure the completion of the said works within the 
time stipulated, or in accordance with this contract, the Commissioners shall be at 
liberty to take any part of or the whole works out of the hands of the contractor, 
and employ such means as they may see fit to complete the works, at the expense of 
the contractor, and he shall be liable for all extra expenditure incurred thereby ; or 
the Commissioners shall have power, at their discretion, to annul this contract. 
Whenever it may become necessary to take any portion or the whole work out of the 
hands of the contractor, or to annul this contract, the Commissioners shall give the 
•ontractor seven clear days* notice in writing of their intention to do so^ such notice 
being signed by the Chairman of the Board of Commissioners, or by any other person 
anthorized by the Commissioners, and the contractor shall thereupon give up quiet 
imd peaceable possession of all works and materials as they then exist, and without 
any other further notice, or process or suit at law, or other legal proceedings of any 
kind whatsoever, or witnout its being necessary to place the contractor en demeure. 
The Commissioners, in the event of their annuling the contract, may forthwith, or at 
their discretion, proceed to re-let the same, or any part thereof, or employ additional 
workmen, tools and materials, as the case may be, and complete the works at the 
•xpense of the contractor, who shall be liable for all extra expenditure which may be 
incurred thereby; and the contractor and his assigns or creditors shall forfeit all 
right to the percentage retained, and to all money which may be due on the works ; 
and he shall not molest or hinder the men, agents or officers of the Commissiontra 
from entering upon and completing the said works, as the Commissioners may deem 
•xpedient. If at any time it shall appear to the Commissioners that the security of 
the work is endangered, or the peace of the neighborhood is likely to be disturbed,^ 
or any other difficulty likely to arise by reason of the men being left unpaid, the 
Commissioners may pay any arrears of wages, so far as they can ascertain the same 
to be due. on the best information they can obtain, and charge the same as a payment 
on account of this contract. 

7. Any notice or other paper connected with this oontract may be served on the 
•ontractor by being left at his or their usual domicile, or by being directed to them, 
or either of thom, through the post office, at their or his last known place ol business, 
and any notico or othor paper no left or directed, shall to all intents and purposes be 
•onsidered legally served. 

8. It shall be in the power of the Commissioners to make payments or advancee 
on materials, tools, or plant of any description, procured for the works, or used or 
intended to be used about the same, in su^n ca^es and upon sueh terms and conditions- 
as to the Commissioners may seem proper, and whenever any advance or payment 
shall be made to the contractors as aforesaid, the materials, tools or plant upon 
wkich such advanqe ar payment shall be made, shall thenceforth be vested in and 
held as collateral security by Her Majesty for the due fulfilment by the contractor 
of the present contract, it being, however, well understood that all such materials, 
tools or plant shall remain and be at the risk of the contractor, who shall be respon- 
sible for the same until finally used, and accepted or given up by the Cora mission era ; 
but tde contractor shall not exercise anv act or ownership or control whatever over 
any materials, tools or plant upon which any advance or payment has been so made, 
without the permission, in writing, of the Commiftsioners, and the Commissioners 
may retain and deduct any such payment from the amount payable to the contractor 
mpon the next or any succeeding certificate ihoreafter. 

9. It is distinctly understood, intended snd agreed that the said price or consi- 
deration of three hundred and ninety-Hve thou-^and seven hundred and thirty-three 
dollars ($395,733), shall be the pr<ce of «nd held to be full compensation for all the 
works embraced in or contemplated by this contract, or which may be required in 
virtue of any of its provisions or by-law ; and that the contractor ishall not, upon 



42 Victoria. Sessional Papers (No. 42.) A. lS/9 



Any pretext whatever, be entitled, by reason of any change, alteration or addition 
made in or to tiuch works, or in the said plans and jspecification, or by reason of the 
exercise of any of the powers vested in the Governor in Council by the said Act, 
intituled ** An Act respecting the construction of the Intercolonial Eailway," or in 
the Commissioners or Engineer by this contract, or by-law, to claim or demand any 
further or additional sum for extra work, or as damages or otherwise, the contractors 
hereby expressly waiving and abandoning all and any sucli claim or pretension to 
all intents and purposes whatsoever, except as provided in the fourth section of this 
-contract. 

10. In this contract and in the said specification, the words "Her Majesty " shall 
mean Her Majesty Queen Victoria, her heirs and successors; the words " Thj» 
Commissioners *' shall mean tl^e Commissioners for the time being, appointed under 
tji© herein first cited Act, intituled "An Act respecting the cpnstruction of th« 
intercolonial Railway;'* the words "The Contractor" shall mean the hereinbefore 
mentiohed Samuel Parker Tuck, find the heirs, executors and administrators of them, 
and .each and every of them, jointly and severally; the words "The Work," or 
"The Works," shall, unless the context requires a different meaning, mean the whole 
of the work and materials, matters and things required to be done, furnished ^nd 
performed by the contractor under this contract ; the words " The Engineer " shall 
mean the Chief Engineer for the time being, appointed under the said Act, intituled 
"An Act lespecting the construction of the Intercolonial Railway," and shall extend 
to and include any of his assistant* acting under his instructions, and all instructions 
or directions given by those acting for the Chief Engineer will be subject to hii 
approval. The woi-d "Railway" shall mean the said Intercolonial Railway. The 
construction of the words given in this clause shall not control any more extended 
si^nitication or construction which may be given to any such words in this contract 
or this specification. 

11. And it is further mutually tts^reed upon by the parties hereto, that cash pay- 
ments equal to eighty-tive per cent, of the value of the work done approximately, 
made up from returns of progress measurements, will be made monthly, on the cer- 
tificate of the Engineer that the work for or on account of which the sum certified 
has been duly executed, and upon approval of such certificate by the Commissioners. 
On the completion of the whole work to the satisfaction of the Engineer, a certificate 
to that effect will be given, but the final and closing certificate, including the fifteen 
per cent, retained, will not be granted for a period of two months thereafter. The 
progress certiticates shall not in any respect be taken as an acceptance of the work 
or lelease of the contractor fi-om his responsibility in respect thereof, but he shall, at 
the conclusion of the work, deliver over the same in good order, according to the 
true intent and meaning of this contract .ind the said specification. 

Ili. This contract and the said r-pociiieation shall be in all respects subject to the 
provisions of the hereinfirst cited Act, intituled, " An Act respecting the Construc- 
tion of the Intercolonial Railwa}^" and also in so far as they may be applicable to 
the provisions of the "Railway Act, 18()8." Provided always, that if the Commis- 
sioners shall at any time hereafter think fit to substitute the erection of iron bridges 
for the bridges or wooden superstructures specified in the general specification form- 
ing Schedule " A" of this contract, then and in every such case the Commissioners 
shall be at liberty to make such substitution at any time before the contractors shall 
have (•ommcnce<l the actual laying of the foundation of masonry for receiving th« 
supeisiructure, and in every such case the Commissioners, upon giving notice to the 
contractor of the intended substitution, may proceed to the procuring of the neces- 
sary materials for and to the erection of and completion of the superstructure of 
such iron bridges, at the cost respectively of Her Majesty, and the contractor shall 
then l)e relieved from the necessity of erecting at such place or places the bridge or 
woodt*n superstructure, as specified in the general specification forming Schedule 
"A" of this contract, but in every ^uch case the value of the wooden superstruc- 
tures, and the reduction in quantity and value of masonry (if any), consequent on 
such substitution, shall be deducted, at the prices named for such description of work 



42 Victoria. Sessional Papers (No 42.) A. 1879 



in the schedule hereunto annexed, from the full umount herein mentioned as payable 
and to be paid for the performance of the work under this contract. 

In witness whereof, the contractor has hereunto set hm band and affixed his seal, and 
the Commissioners, acting herein on behalf of Her Majesty, have hereunto res- 
pectively set their hands and affixed their seals, the day and year first abov« 
written. 

Signed, sealed and delivered by the' 
hereinbefore named Samuel Parker 1 ^^ ^ ^ PARKER TUCK. 
Tnck, m the presence of ( 

(Sd.) John A. McDonnell. , 

Signed, sealed and delivered by the! ^^."^'^ ED^B^ r^HANDLER 
four Commissioners hereinbefore V .. ^^'^ ^^.^^^rT^cT ^ 



named, in the presence of 






C. J. BRYDGES, 
A. W. MoLELAN, 

Commissioners. 



SCHEDULE "A." 

INTEROOLONLIL RAILWAY. 

General Specification for the Construction of the Work, 

1. Thi» specification refers to all works of conjunction and mat<3rials required in 
making and building the railway up to the formation level, and preparing it for the 
permanent way. It comprises clearing, close cutting, grubbing, fencing, excavation, 
draining, ditching, foundation works, bridge and culvert masonry, the superstructure 
of the bridges, together with all other works connected with the construction and 
completion of the line of railway : the intention being that the contractor shall 
complete the road-bed of the railway, and provide all materials of every kind except 
the ties or sleepers, iron rails and their fastenings, the ballasting and the laying of 
the track. 

CLEARING. 

2. Where the railway passes through wooded sections, the land must be cleared 
to the width of fifty feet on each side of the centre line, of such greater or lessor 
width as the engineer may direct. 

3. The clearing is to be done so that all the brush, logs and other loose material 
within its limits will be burned. A sufficient quantity of fencing stuff only may be 
reserved, cut into equal lengths and piled. In no case shall any of the brush or logs 
be cast back upon the adjacent lands, — they must invariably be made into piles near 
the centre of the space to be cleared, and there entirely consumed. All brush or 
trees accidentally or otherwise thrown into the adjacent woods must be dragged out 
and burned. The land when 'jleared must be left in a clean condition. 

4. Where embankments are to be formed less than four loet and more than two 
feet in height, all standing timber and stumps must be chopped close to the ground 
within the limits of the embankment, and burned. 

5. Where excavations will not exceed three feet in depth, or embankments two 
feet in height, all stumps must be grubbed out, and if possible, burnt. Those that 
will not burn must be carried beyond the limits of the cuttings and embankments, 
where directed, and there piled. Directions will be given at the proper time as to 
the extent of ground required to be cleared, close cut, and grubbed. 

FENCING. 

6. The fencing through cleared and settled sections of the countiy will be 
(Straight panel fence. Each panel will be ton feet long and four feet six inches higlu 

7 



42 Victoria. Sessional Papew (No. 42.) A. 187^ 



It will be formed by placing posts in pairs, and kept about four inclies apart by tho' 
insertion of a horizontal rail at top. The top rail will lap between the posts not less 
than fourteen inches, and will be secured in its position by a half-inth screw-bolt 
passing through both posts. The top rail may eitner be a spruce board, 2 x 6, or a 
eedar pole of corresponding strength, and reduced at the ends to two inches, so as 
to form a proper lap between the posts. The posts will be sunk in the ground half 
their length ; they will be of cedar, nine feet long, and not less than five inches 
diameter at the smallest end ; they will be flattened at the top, to allow the proper 
lapping of the top rail and the insertion of the iron bolts, to secure the whole nnally. 
The bolt will be 11 inches long, half-inch diameter, with suitable head screw, nut and 
washer. At the option of the contractor the posts may be made from a single cedar 
stick, not less than six inches diameter at the small end, sawn through the middle, 
with tho sawn laces placed on the lap of the top rail. 

T. Each panel will be filled in from the ground to the under side of the top rail 
with good, strong, common split fence rails or fence poles, of the most suitable 
description of timber found in or near the locality. Bach rail will rest on the top of 
its fellow in each alternate panel. All holes or depressions under the lower rail that 
would admit small animals must be stopped up witn earth, stones, or blocks of wood. 

8. The farm gates will be light and strong, of an approved design, similar to 
those on the Grand Trunk Eailway east of Quebec, on tne Nova bcotia Bailway 
east of Truro : they will be furnished complete, with proper fastenings ; they will 
receive two coats of white paint, or one coat of coal tar. 

9. The fencing to be tnoroughly complete through all the cleared lands, and 
wherever else it may be required by the Engineer. 

GRADixa. 

10. In woodland the grading will not be commenced until the clearing, closQ 
cutting and grubbing required to completion to the satisfaction of the Engineer be 
done, and the contractor will be held responsible for all damage to crops. 

11. The width of embankments to sub-grade or formation level is intended to be^ 
eighteen feet. The width through cuttings will, as a general thing, be twenty-two 
feet, and of side cuttings, twenty feet, but they may vary, according to the section of 
the country and other circumstances, as the Engineer may direct. The slopes of 
earthworks will be made one and a half honzontal to one perpendicular. The rock 
cuttings slopes will be, as a rule, one horizontal to four perpendieular. In cittingft 
partly earth and partly rock, a berm of six feet shall be left on the surface of the 
rock. The widths, slopes, and other dimensions above defined may be varied by th# 
Engineer at any time to suit circumstances. 

12. The materials to be placed in the embankments must be approved by the 
Engineer, and in places where the natural surface of the ground, upon which the 
embankment is to rest, is covered with vegetable matter which cannot be burned off 
in clearing, and which would, in the opinion of the Engineer, impair the work, the 
ftame must be removed to his entire satisfciction. All sloping ground covered with 
pasture shall be deeply ploughed over the base of the embankments before the 
tatter are commenced. 

13. All side-hill ground to be covered by embankments shall first be thoroughly 
Hndei*drained, as the Engineer may see expedient ; and all cuttings after being 
formed, and all slopes likely to be affected by wet, must be similarly underdrained, 
longitudinally or transversely, or both, as circumstances may seem to him to require. 
These drains will be constructed in a similar way to that in which ordinary land 
drains are sometimes made. A trench will first be dug to a depth of four feet on an 
average, and barely wide enough for a man to stand. In the bottom of this trench, 
three or four cedar or spruce polos, from two to three inches diameter^ will first be 
laid bv hand, breaking joint; over the poles will then be placed two feet of coarse 
gravel or broken stone, not larger than ordinary road metal, over which will be 
placed a coating of brush, and then the trench will be filled up to the surface of the 

8 



42 Victoria. Sessional Papers (No. 42) A. 187D 



^onnd with such material convenient to the place as the Engineer may approve oL 
The contractor must find all the material required in these drains, do all tne work 
described, and remove the surplus earth. These drains must always be made with a 
sufficient longitudional fall for the easy flow of the water, and therefore they may in 
level cuttings be deeper at one end than at the other, but the average depth will in 
all cases be considered four feet. 

14. On the completion of the cuttings and the underdrains provided for in the 
last clause, ditches for the removal of surface water shall be formed along each side, 
at the bottom of the slopes, according to directions to be given. Catch-water ditches 
shall also be formed some distance back from the top of the slopes, to exclude from 
the excavation any water flowing from the adjoining lands. The contractor shall 
also construct all other drains and ditches which the Engineer may deem necessary 
lor the perfect drainage of the railway and works. 

15. All open ditchei in cuttings and elsewhere, and all excavations required for 
turning, making or changing water courses, other than the under drains above 
mentioned, the formation of public roads, grading depot grounds, branches or turn- 
outs, and foundation pits for masonry, and the material deposited as the Engineer 
may direct, must be executed as may from time to time be directed. 

16.^ The embankments must be made to such sufficient height and width as will 
allow for the subsidence of the same, and both cuttings and embankments shall be 
left at the completion of the contract at such heights, levels, widths and forms as 
directed by the Engineer. 

17. The whole of the grading shall be carefully formed to the levels given, and 
the roadway in cuttings shall invariably be rounded, and left from six to eight inches 
lower at the sides than in the centre line. In rock cuttings it will be sufficient to 
form a water channel, about two feet wide and eight inches deep, along each 
side. All materials found in excavations, whether in road-bed cuttings, ditches, water 
channels, road crossings, borrowing pits, or elsewhere, must be deposited in such 
places as the Engineer may direct. In cases where the road-bed excavations are 
insufficient to form the embankments, the deficiency shall be supplied by widening 
the cuttings, or from the sides of the road, or from borrowing pits, but no material 
shall be so supplied without his concurrence,and not until the cuttings are completed^ 
without his express directions. All borrowing pits shall be required by the Engineer 
to be dressed to a good shape, and properly drained. Where material to make up 
embankments is taken from the side, a berm of at least ten feet from bottom of slope 
«f embankment shall remain untouched. 

18. Where the excavation in a cutting exceeds what may be required to make the 
embankments of the specified width, the Engineer may direct that the embankmentA 
be increased in width with the surplus material, and when this is done to his satis- 
&ction, the remainder (if any) may be wasted ; but in every case where either 
borrowing or wasting is resorted to, the materials must be taken and deposited as he 
may regulate and direct. 

19. In cases where pitching or riprapping will be required for the protection of 
embankments contiguous to streams, all stone suitable for this work found in excava- 
tions may be removed and deposited in some convenient place until required, and 
all good building stone which may be found in rock excavations, may, with the 
approval of the Engineer, be preserved and used in masonry. 

20. fiiprap work, wherever required and ordered for the protection of slopes of 
embankments, must be well and carefully performed, in sucu manner and of such 
thickness as may be directed. 

21. Eoads constructed to and from any point on the line of railway for the con- 
Tenience of the contractor, for the conveyance of material, or otherwise, must be at 
his own risk, cost and charges, but the contractor will not be required to purchase 
land for the railway track, for branches, or for borrowing pits. 

22. Wherever the line is intersected by public or private roads, the* contractor 
must keep open, at his own cost, convenient passing places, and he shall be held 
responsible for keeping all crossings during the progress of the works in such condi- 

9 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



lion as will enable the public to use them with perfect safety, and such as will give 
rise to no just ground of complaint. Contractors will bo held liable for any damage 
resulting from negligence on their part or that ot their men. At all public roads, 
crossed on the level, the contractor will be required to put in two substantial cattle 
guards of wood, of such dimensions as may be directed by the Engineer, and also 
provide the notice boards required by law. 

23. Whenever any material is met with in the excavations which the Engineer 
shall consider suitable and required for ballast, the same shall, at his direction, be 
reserved for that purpose. 

24. When slips occur in cuttings after they are properly formed, the material 
must be immediately removed by the contractor, the slopes re-formed, and such pre- 
cautions adopted as the Engineer may deem necessary, the whole being done at the 
expense of the contractor. 

25. In forming embankments, great care must be taken to place against the 
backs of all wails exposed to the action of frost three feet in thickness, or any greater 
thickness that the Engineer may direct, or rip-rap backing, consisting of small stones, 
blinded with spalls or coarse gravel, to prevent the retention of moisture and the 
action of frost thereon. And in forming embankments between wing -walls, against 
abutments of bridges, viaducts or culvoris, and over arches, the earth-filling mast be 
carefully packed and prumed in thin layers, and a proper quantity of material must 
be carefully placed equally against each side of and over all bridges, culverts, or 
other work, before the embankment approaches it, and in forming embankments, the 
greatest care must be observed, and every precaution must be taken to load the 
masonry and structures evenly. 

1:6. In the event of earth excavation being proceeded with in winter, no snow or 
ice must be placed in embankments, or allowed to be covered up in them, and all 
frozen earth must be excluded from the heart of the exbankments. 

27. The contractor shall, at his own cost, before the woik is finally accepted, 
finish up cuttings and embankments, dress and drain borrowing- pits when required, 
dress slopes to the required angles, repair all damages by frost or other causes, com- 
plete everything connected with the grading of the road-bed, bridges, &c., in a 
creditable and workmanlike manner, in accordance with the directions and to th# 
satisfaction of the Engineer. 



F0UNDA1I0N8. 

28. Foundation pits must be sunk to such depth as the Engineer may deem 
proper for safety and permanency of the structure to be erected. They will in all 
cases be sunk to such depths as will prevent the masonry being acted on by the frost. 
The material excavated therefrom will be deposited in embankments, unless the 
Engineer direct otherwise. Wherever timber or other artificial foundations may be 
found expedient, the pits will be made of sufficient dimensions to admit them without 
difficulty'! 

29. No masonry shall be commenced in any foundation pits before they have 
been inspected and approved by the Engineer, and they must be kept free from water 
during the progress of the work, until the masoniy is brought above the level of the 
surface. 

80. Foundation timbers, when required, will be of such dimensions and of such 
kinds as the Engineer may direct. The timber employed will be tamarac, hacmaiac, 
hemlock, black spruce, or pine in plank, from 3 to 6 inches thick, or timbers flatted 
on two sides only, and ranging from 6 inches to 12 inches thick. The faces of the 
flatted timber will at least measure as much as its thickness, and the bark will be 
removed from the sides not flatted. 

31. All spikes, bolts, straps, or other iron-work found necessary to be used ui 
timber foundations must be of the best quality of iron usually employed for similar 
purposes. 

If 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



32. Whenever the Engineer may direct piling to be done, the timber shall be in 
-every respect sound, and of such description as he may approve. Where he may 
t^ink it necessary, trial piles shall first be driven. 

33. The piles shall be carefully and truly pointed, shod and hooped with iron, as 
may be directed. They shall be driven to any depth the Engineer may deem expedi- 
^nty and the weight of ram as well as the fall shall be such as he may consider neces- 

The greatest care must be taken to drive the piles plumb or battered in such 
j)OS]tions and distances apart as he may direct. Any pile that may bo damaged, or 
"too short, or out of proper line when driven, shall be taken up and replaced by 
another. The heads of piles must not be injured in driving. 

34. Wherever concrete is employed, it will be composed of hydraulic lime, clean, 
sharp sand, and good gravel of approved quality and proportions. The proportion of 
sand and lime will be about the same as in mortar, and in making the concrete a 
jiufficient quantity will be used with the gravel to till up every interatice, and render 
the masonry, when set, perfectly solid and compact. 

MASONRY. 

35. All the masonry must be of a substantial and permanent character, made of 
dorable and suitable materials, and in every respect equal to the best description of 
masonry in railway works. 

36. The masonry shall not be started at any point before the foundation has 
been pi*operly prepared, nor until it has been examined and approvo<l by the Engineer, 
ngjr until the contractor has provided a sufficient quantity of proper materials and 
plant to enable the work to be proceeded with regularly and systematically. 

S7. Hydraulic lime mortar will be used, unless otherwise directed, in building 
all masonry from the foundation up to a lino two feet above the ordinary level of the 
stream. It will be used also in turning arches, in laying girder beds, coping cover- 
ing of walls generally, in lipping and in pointing. The hydraulic lime or cement 
must be fresh ground, of the best brand, and it must be delivered on the ground and 
kept till used in good order. Before being used, satisfactory proof must be att'orded 
<|he Engineer of its hydraulic properties, as no inferior cement will be allowed. 

38. Lime mortar must be made of the best common lime, and will bo employed 
in all masonry (except dry) where cement is not directed to be used. 

33, Both cement and lime must be thoroughly incorporated with approved pro- 
poHions of cle^n, large-grained, sharp sand. The general proportions may be one 
part of lime to two parts of sand; but this may be varied according to the quality 
of the lime or cement. Mortar will only be made as required, and it must bo pre- 
p^:ed and used under the immediate direction, and to the satisfaction of an Inspector, 
by the contractors* men, failing which the Inspector may employ other men to pre- 
pare the mortar, and any expense incurred thereby shall be borne by the conti actor. 
Crrout shall be formed by adding a sufficient quantity of water to well-tempered and 
well-proportioned mortar. 

io. The stone used in all masonry on the line of railway must be of a durable 
eharacter, large, well proportioned, and well adapted for the construction of sub- 
stantial and permanent structures. Parties tendering must satisfy themselves as to 
where fitting material for the masonry can be most conveniently procured. 

41. The masonry will be classified as follows : 

First-class masonry in ceme it. 

" " in common lime. 

Second-class " in cement. 

** " in common lime. 

42. First-class masonry shall be in regular courses, of large and well-shaped 
stone, laid in mortar, on their natural beds. Tho beds and vertical joints will be 

11 



42 Victoria. Sessional Papers (No. 42,) A* 1879 



hammer dressed, so as to form quarter-inch joints. The vertical joints will be dressed 
back square nine inches, the beds will be dressed perfectly parallel throughout. The 
work will be left with the '* quarry face," except the outside arrises, strings and 
coping, which will be chisel dressed. 

43. The courses of first-class masonry will not be less than twelve inches, and 
they will be arranged in preparing the plans to suit the nature of the quarry — 
courses may range up to 24 inches, and the thinnest courses invariably be placed 
towards the top of the work. 

44. Headera will be built in every course, not further apart than six feet; they 
will have a length in line of wall of not less than twenty-four inches, and liiey must 
rup back at least two-and-a-half times their height, unless when the wall will not 
allow this proportion, in which case they will pass through from back to back 
Stretchers will have a minimum length in line of wall of thirty inches, and their 
breadth of bed will at least be one-and-a-half times their length. The vertical joints 
in each course must be arranged so as to overlap those in the course below, ten inches 
at least. 

45. The quoins of abutments, piers, &c., shall be of the best and largest stones, 
and have chisel drafts properly tooled on the upright arris from It to S inches wide, 
according to the size and character of the structure. 

46. Coping stones, string courses, and cut waters, shall be neatly dressed in 
accordance with plans and directions to be furnished during the progress of the work. 

47. The bed stones for girders shall be the best description of sound stone, fre« 
from drys or flaws of any kind. They must be not less than 12 inches in depth for 
the smaller bridges, and eight feet superficial area on the bed. The larger bridge* 
will require bed stones of proportionately greater weight. These stones shall be solidly 
and carefully placed in position, so that the bridge will sit fair on the middle of 
each stone. 

48. The backing will consist of flat bedded stone, well shaped, having an area of 
bed equal to four superficial feet or more. Except in high piers or abutments two 
thicknesses of backing stone must be allowed, but not more, in each course ; and their 
joints must not exceed that of the face work. In special cases, where deemed neces- 
sary by the Engineer to insure stabilitj , the backing shall be in the one thickness* 
The beds must, if necessary, be scabbed off so as to give a solid bearing. No pinning 
will be admitted. Between the backing and face stones there must be a good square 
joint not exceeding one inch in width, and the face stones must be scabbed off to 
allow this. In walls over three feet in thickness, headers will be built in front and 
back alternately, and great care must be taken in the arrangement of the joints S0^ 
as to give perfect bond. 

49. Every stone must be set in a full bed of mortar, and beaten solid. The 
vertical joints must be flushed up solid, and every course must be perfectly level, 
and thoroughly grouted. 

50. Second-class masonry shall be built of good, sound, large, flat-headed stones, 
laid in horizontal beds. It may be known as random work, or broken coursed rubble. 
The stones employed in this class of masonry will be generally not less in area of bed 
than three superficial feet, nor less in thickness than eight inches ; and they must be 
hammer-dressed so as to give good beds with half-inch joints. In smaller structures, 
and in cases where stones of good size and thickness cannot be had, they may, if in 
other respects suitable, be admitted as thin as five inches. All stones must be laid 
•n their natural beds. 

51. Headers will be built in the wall from front to back alternately, at least ons 
in every five feet in line of wall, and frequently in the rise of wall. In the smallest 
structures headers shall not be less than 24 inches in length, and the minimum bed 
allowed for stretchers shall be twelve inches. In the larger structures all stones 
must be heavier in proper proportion. Every attention must be paid to produce a 
perfect bond, and to give the whole a strong, neat, workmanlike finish. 

52. Wing walls will generally be finished with steps formed of sound, durable 
stone, and not less than from ten to twelve inches thick, and six feet superficial area* 

12 



42 Victoria. Sessional Papers (No. 42,) A. 1879 



Other walls will be covered with coping of a similar thickness, and of seven feet or 
upwards superficial area. These coverings will be neatly dressed when required, and 
as may be directed. The walls of the box culverts will be finished with stones the 
full thickness of wall, and the covers will be from 10 to 15 inches thick according to 
the span. They must have a bearing of at least twelve inches en each wall, and they 
must be fitted sufficiently close together to prevent the earth from falling through. 

53. In second-class masonry, each stone, except when dry work is intended, will 
be laid in full mortar, all joints flushed solid, and each course regularly and thoroughly 
grouted. 

54. In all<walls built in common lime, the exposed faces will have a four-inch 
lipping of cement. 

ARCHES. 

55. A distinction will be made between arches often feet span and upwards and 
those of eight feet span and under. The former will be of first-class masonry, 
although they may be constructed on walls of second-class work. Arches of eight 
feet span and under will be second-class masonry. Arches of each class will be semi- 
circular. 

56. First-class arches will be constructed of stones, cut &o as when laid their beds 
will radiate truly from the centre of the circle. The depth of stones will, of course, 
vary with the span, but will never exceed thirtj? inches ; they may not be less in 
length than twenty-seven inches, and they must break joint ten inches ; their thick- 
ness on the soffit must be at least nine inches, and it will be dressed to the circle. 
All the stones must be dressed to the fiill depth of bod, so as to give truly radiated 
joints from 3-16ths to J-inch ; they must be set without pinning of any kind, and the 
joints at the ends must be properly squared. Each stone to be fully bedded in 
cement, and each course afterwaixis thoroughly grouted. The outer ring stones to be 
neatlv worked with a chisel draft around their ederes. 

57. Second-class arches shall be constructed of suitable flat-bedded stones, 
ranging, according to the span, from sixteen to twenty-four inches, and five to six 
inches in thickness on the soffit. They must invariably extend through the entire 
thickness of the arch. Each stone to be well and closely fitted, so as to give half-inch 
joints, and to break joint with its fellow seven to nine inches. The whole must be 
laid in thin mortar, and each course must be wjll grouted immediately after being 
laid. The outer arch stones to be as nearly uniform in thickness as possible, of large 
size, and neatly incorporated with the perpendicular face of the masonry. The key- 
stones to be ten or twelve inches on the soffit, to have a chisel draft around their 
edges, and to project beyond the face of the wall two or three inches. 

58. Arches of each class shall be built in cement, and before being covered with 
earth or the centering removed they must be thoroughly flushed on the back, levelled 
up and rounded to a moderately even and smooth surface with the same material. 

59. Centres of arches must in all cases be well formed, of ample strength, secui'ely 
placed in position, and in every respect to the satisfaction of the Engineer. The ribs 
must not be placed further apart than three feet in any case. The laggings shall be 
c«t to a scantling of three inches square. The supports of centres shall be substan- 
tial and well supported and constructed ; and they must be provided with proper 
wedges for raising centres when required. 

60. Structures having more than one arch shall be provided with as many 
centres as the Engineer may deem proper, and in no case shall the centres be struck 
without his sanction. 

61. Centering and scafiblding of all kinds shall be provided by the contractor. 

62. All masonry must be neatly and skilfully pointed, but, if done out of season, 
or if from any other cau^e it nay require re-pointing before the expiration of the 
contract, the contractor must make good and complete the same at his own cost. 
Work left unfinished in the autumn must be properly protected during the winter by 
the contractor at his own risk and cost. 

13 



42 Victoria. 



Sesfiional Papers (No 4"^,) 



A. 1879 



MISCELLANEOUS WORK. 



CS. After tho raasonry of a Htructure has been completed for a period of four or 
live weeks, it may be proceeded with. The earth must be carefully punned in thin 
layers around the walls, and in this manner the filling must be earned up substan- 
tially on both sides. The contractor must be extremely careful in forming the 
embankments around culverts and bridges, as he will be held liable for any damages 
to the structures that may arise. The punning must be carefully attended to, and 
the whole filling must invariably be done in uniform courses from the bottom to the 
top of the embankment, without loading one side of the masonry morb than another. 

64. The bottoms of culverts will be paved with stones set on edge to a mode- 
rately even face, packed solid, and the interstices filled with grout formed of hydraulic 
cement. The paving will be from 12 to 16 inches deep. 

65. All the works shall be executed in a thoroughly good, substantial, workman- 
like manner, to the satisfaction of the Engineer, and upon their completion the con- 
tractor shall clear away all rubbish and unnecessary material. 



BRIDQES. 

66. To be of the most approved Howe -Truss pattern, built of pine, with white 
oak keys, cast iron prisms and wrought iron rods, the whole to be of first-class mate- 
rial and workmanship painted three coats. Detailed drawings and specifications 
will be prepared during the progress of the works by the Engineer to suit such span 
or bridge, and to which the contractor must work. 

The foregoing ** Schedule A " is the specification of the work referred to as 
" Schedule A " in the contract for the construction of Section No. 19 (Section nam- 
bered nineteen) of the Intercolonial Bailway, made and executed by me as the conr 
tractor (under named) of the one part, and Her Majesty, represented by the Com- 
missioners for the construction of tho said Eailway , of the other part, bearing date on 
the fifteenth day of June, in the year of our Lord one thousand eight hundred and 
seventy, to which said contract this schedule is annexed, as forming a part therwf. 



Witness — 
As to the exection by the Contractor 
(Sd.) John A. Maodonnbll 



"1 



And as to the execution by the Com- 
missioners : 



(Sd.) S. PARKBK TUCK. 



(Sd.) A. WALSH, 
" ED. B. CHANDLBE. 
" C. J. BKYDGBS, 
A. W. MoLBLAN, 

GomnUssimers. 



In about one year after the date of the foregoing Indenture, and in or about the 
year of our Lord one thousand eight hundred and seventy-one, the said Samuel Parker 
Tuck having failed to proceed with the work to have been performed by him under 
the said contract, was relieved thereof, and discharged therefrom by Her Majesty, 
represented by the said Commissioners, and the contract for executing the said work 
was thereupon let to and undertaken by Thomas Boggs, of the City of Halifax, afore- 
said, merchant, now deceased, and the above-named John K. Murray, your Majesty's 
now suppliant, then doing business as co-partners in the name, style and firm of 
Thomas iBoggs and Company, and acting in their co-partnership capacity as such 
firm ; and thereupon the said firm Thomas Boggs and John R. Murray entered into 
a contract with Her Majesty Queen Victoria represented by the Commissioners 
aforesaid, appointed as aforesaid, under and by virtue of the Act of Parliament of 
Canada aforesaid, which said contract was witnessed by and contained in an Inden- 

14 



42 Victona. Sessional Papers (No.42.) A. 1879 



ture bearing date of that time, and made by the said Thomas Boggs and John E. 
Murray of the first part, and Her Majesty Queen Victoria represented therein 
by the Commissioners aforesaid, under and by virtue of the Act of Parh'ament afore- 
said of the second part, and to which last-mentioned Indenture was also annexed a 
Schedule marked **A" therein referred to, and the last-mentioned Indenture and 
Schedule were and are, save and except as to the date of the said Indenture and the 
date therein mentioned for the completion of the works therein specified, in form, 
substance and effect the same as the Indenture and Schedule hereinbefore first men- 
tioned and set forth. The said Indenture last made was retained bv the said Commis- 
sioners in their own possession and control, and the same is now in the Department 
of Public Works of Canada at Ottawa ; and the said Thomas Boggs and John K. 
Murray have not had nor has either of them ever had, nor has any person for them 
or either of them ever had a duplicate or copy thereof, nor have they or either of 
them had reference thereto or inspection thereof and your suppliant is unable 
to set forth the said last-mentioned Indenture and Schedule, or to state the exact 
date thereof, or to state the contents thereof more precisely or with more certainty 
than he has above done or endeavored to do ; but your suppliant craves leave to 
refer to the said Indenture and Schedule for greater certainty, when the same are 
produced. 

The said Thomas Boggs and John R. Murray commenced the works by them 
to be performed under the said contract with her flajesty, and embraced therein, and 
continued, to perform the same according to the said contract until the month of 
March, in the year of our Lord one thousand eight hundred and seventy- three, when 
the said Thomas Boggs died, leaving the said John R. Murray him surviving, and 
thereafter the said John R. Murray continued as and being the sole surviving partner 
of the firm aforesaid, to perform the said works, and without avoidable delay on his 
part he performed and fully and finally completed the same in the month of October, 
in the year of our Lord one thousand eight hundred and seventy-four, and save and 
except that portion of the works embraced in the said contract, which consisted in 
the erection and construction of the bridge over the River Restigouche. 

With reference to the erection and construction of the same bridge over the 
River Restigouche, your suppliant says that the same was taken out of the said last- 
iT.«'ntioned contract, and the said Thomas Boggs and John R. Murray, by their 
c«' 'Sent, were relieved from performing that portion of the work embraced in the 
sai 1 contract by the said Commissioners, and in consideration thereof, the contract 
price or sum mentioned in the said contract was reduced by the sum of one hundred 
and sixteen thousand dollars, which sum of one hundred and sixteen thousand 
dollars was deducted from the sum of three hundred and ninety-five thousand seven 
hundred and thirty-three dollars, which last-mentioned sum was the amount men- 
tioned in the said contract as the price or consideration money to be paid to the 
said Thomas Boggs and John R. Murray, for the execution of all the works contained 
in the said contract. 

In following the directions and instructions of the said Commissioners and the 
Engineers employed by them and placed in charge of the said works given from time 
to time as provided by the said contract, and which directions and instructions the 
said contractors were by the terms and provisions of the said contract bound to 
follow, and which they did follow, the said contractors, Thomas Boggs and John R. 
Murray, performed a large amount of extra work which was not comprised in the 
Schedule and specifications referred to in the said contract, and connected therewith, 
and not intended to be covered by the ^ross or lump sum of three hundred and 
ninety-five thousand, seven hundred and thirty-three dollars, the consideration money 
aforesaid, nor by the balance or sum of two hundred and seventy-nine thousand seven 
hundred and thirty-three dollars which remained after deducting from the whole 
contract price the sum aforesaid of one hundred and sixteen thousand dollars, as the 
equivalent for withdrawing the construction of the bridge aforesaid over the River 
Restigouche from the works to be performed under the said contract. 

li 



42 YictoriA. Sessional Papers (Na42) A^ 1879 14 



A large portion of the said extra work ai'ose from and was caused by alterations 
in the grades and the line of location or portions of the line of the said railway, which 
alterations were made from time to time by the Engineer in charge as aforesaid, 
under the power given to him by the fourth paragraph or section of the said contract, 
and for which work your suppliant submits that he is entitled under the said contracts 
to be paid at reasonable rates, or at the same rates as were calculated by Engineers 
as reasonable for other works of a like kind performed under the said contract. 

Another, but much smaller portion, of the said extra work so performed, consisted 
of work resulting from changes made by the said Engineer other than alterations in. 
the grades or the line of location, but it was work which was not comprised in or 
contemplated by the Schedule of works and quantities prepared and published by 
the Chief Engineer of the said railway prior to the letting of contracts for the con- 
struction of the said railway, and which contained the only information and data of 
that kind whereupon intending contractors or persons intending to tender for con- 
tracts for the construction of portions of the said railway, as by public advertisement 
published by the Commissioners they were invited to do, eould make calculations 
whereupon to base their tenders ; and one of the said Schedules of works and quanti- 
ties relating to Section No. 19 aforesaid formed, and was the only data upon which 
the said Thomas Boggs and John E. Murray made their calculations, and took the 
said contract. 

But the information and data furnished by the said schedule were extremely 
defective, insufficient and erroneous, and the said Thomas Boggs and John R. Murray 
were deceived and misled thereby in making their calculations and estimates respect- 
ing the said works and in entenng into the said contract, and they would not have 
accepted the said contract, or entered into the same for the price or consideration 
therein mentioned, had the information and data furnished by said schedule been tso 
full, sufficient, correct and accurate as to enable them to see the full extent, nature, 
quality and quantity of the works required, as the same was afterwards directed and 
required by the Engineers in charge to be done and performed, and as the same was 
done and performed. 

As regards over work of the kind last mentioned, your suppliant submits that it 
was not the intention of the parties to the said CT)ntract, nor has it been the usage in 
such cases, to hold such contractors to the strict letter of such contracts, in so far as 
to compel such contractors to execute and perform a large quantity of work ot which 
the schedule such as aforesaid gave defective, insufficient and erroneous information, 
and which not being in the contemplation of the parties thereto, was not intended to 
be performed under the said contract, and which could be performed by such con- 
tractors, and which was in fact performed by them only with ruinous consequences 
to themselves and others. And your suppliant submits and claims that he is entitled 
to and should be paid for the said extra work of the kind last mentioned. 

During the construction of the said works the said Thomas Boggs and Company 
were, and after the death of the said Thomas Boggs your Suppliant was frequently 
and unnecessarily put to great expense in the construction of the said works^ by want 
of and delay in preparations by the said Commissioners and their Engineers, in 
acquiring right of way, locating line, laying out work, and furnishing specifications 
necessary to enable the contractors to proceed with and execute the said works, thus 
causing to the said Thomas Boggs and Company, and to your suppliant afterwards, 
great in( onvenience, delay and loss of labor, and other consequent loss and damage. 

The reports of Engineers, and of the Commissioners aforesaid, and of others, 
respeciing the said works made from time to time during the progress of the said 
works, and since the same were completed, are in the Department of Public Works 
of Canada, at Ottawa, but access thereto and inspection thereof have been refosed to 
your suppliant by the Officers of the said Department in charge thereof, and by the 
Minister of Public Works ; and your suppliant is therefore unable to give an accurate 
statement respecting: the said works, extra works, changes of grade and of location, 
and of the works and extra works and expenses consequent thereon. 

Your suppliant claims in the premises one hundred and fifty thousand dollars. 

16 



42 Victoria. Sessional Papers (No 42) A. 1879 



Your suppliant therefore humbly prays that his claim and the nature and 
grounds thereof may be enquired of, and that he may have such relief 
and compensation in the premises as may be deemed just, together with 
his reasonable costs ; and your supplicant, as in duty bound, will ever 
pray. 

GEOBGB J. O'DOHERTY, 

Attorney for JORN B. MUBBAY. 

Dated this twenty-sixth day of January, A.D. ISTG. 



IN THE EXCHEQUER COURT OP CANADA. 



The Nineteenth day of October, A.D. 1876. 
In the matter of the Petition of Right of JORN B. MUBBAY. 

The answer of the Honorable Edward Blake, Her Majesty's Attorney-General 
for the Dominion of Canada, on behalf of Her Majesty. 

In answer to the said petition I, the Honorable Edward Blake, Her Majesty's 
Attorney-General for the Dominion of Canada, on behalf of Her Majesty, say as 
follows : 

, 1. On behalf of Her Majesty I admit that Samuel Parker Tuck, mentioned in 
the suppliant's petition, entered*into a contract for the construction of section number 
nineteen of the Intercolonial Railway with Her Majesty, for the sum of $395,733.00, 
and in accordance with the other specifications and conditions of the said contract as 
set forth in said petition. 

2. With respect to the second paragraph of the said petition I say that in the 
month of August, in the year of our Lord 1871, and when the said Samuel Parker 
Tuck had proceeded with the construction of a portion of the said section, and had 
received from Her Majesty various sums of money for the work done and materials 
famished in and towards the performance of his said contract, amounting in the 
whole to the sum of $51,000.00, the same being a portion and on account 
of the said sum of $395,733.00, the original contract price, oy an Indienture bearing 
date the second day of August in the said year, made between one Thomas Boggs 
and the suppliant of the 1st part ; Her Majesty — represented therein by Aquila 
Walsh, Esq., M.P., the Honorable Edward Barron Chandler, Charles John Brydges, 
Esq., and the Honorable Archibald Woodbury McLellan, the Commissioners appoint- 
ed under and by virtue of the Act of Parliament of Canada passed in the thirty-first 
year of Her Majesty's Reign, and intituled an Act respecting the construction of the 
Intercolonial Railway, of the 2nd part ; and the said Samuel Parker Tuck of the 3rd 
part; it was agreed between the said parties that the said Samuel Parker Tuck 
should be released from the said contract for the construction of section 19 of the 
said railway, and that the said Thomas Boggs and the suppliant should complete 
the construction of all that and those portions of the said railway known as section 
19 as might not have been already completed, and all the bridges, culverts and the 
works apurtenant thereto as described, more particularly in and by the contract 
between Her Majesty and the said Tuck, (which said contract with the schedule 
and tender for the construction of section number 19 with the schedule thereon 
endorsed or thereto annexed, was annexed to the said agreement of the second day 
of August, A.D. 1871, made between Her Majesty, the said Tuck and the said Boggs, 
and the suppliant as aforesaid, and was in the said agreement declared to bo marked 

17 
42 »— 2 



42 Victoria. SeBsional Fapern (Na 42.) J^ 1879 



as Letter A, and to be read and treated as part and parcel thereof as if the same had 
been eml odicd therein) at and for the price or consideration of the same, of the sum 
of $344,133.00, the same being the residue of the said sum of $395,733.00, the original 
contract price agreed to be paid to the said Tuck, after deducting therefrom the sum 
of $51,000.00 paid to him for work done and performed by him on the said section, 
prior to the contract for the same being Transferred to the said Boggs and the 
«appliant, to the entire satisfaction of the Commissioners, and according to the plans 
and specifications thereof, signed by the Commissioners and the said Samuel 
Pai'ker Tuck, which said plans so signed as aforesaid were (as they were 
declared to be in the said contract) deposited in the olfice of the Commissioners 
in the City of Ottawa, and according to the specifications thereof also signed and 
marked as Schedule A which were (as they were declared to be) annexed to and 
made part and parcel of the said contract between Her said Majesty and the said 
Tuck. 

And it was by the said contract between Her Majesty and the said Boggs and 
the suppliant agreed that the said Boggs and the said suppliant should forthwith pro- 
ceed to and with the construction and completion of the works embraced in the said 
contract, and should diligently and continuously prosecute and continue the same, 
observing, keeping and performing at all times during the prosecution of the said work, 
all and every the provisoes, conditions, stipulations and agreements, and becoming 
and being liable to all the penalties in the event of default made by them as expressed 
and contained in the said contract made between Her Majesty and the said Samuel 
Parker Tuck, and which were to have been observed, kept, performed, incurred or 
suffered by the said Samuel Parker Tuck, in the same manner in every respect as if 
all and every such provisoes, conditions, stipulations and agreements had been liter- 
ally embodied in the said contract between Her Majesty and the said Boggs and the 
suppliant, and that the said works respectively and every of them should be fully 
and entirely complete in every particular in accordance with the said contract 
between Her Majesty and the said Samuel Parker Tuck, and given up under final cer- 
tificate and to the satisfaction of the Commissioners and Engineer of the said rail- 
way, on or before the first day of July, A.D. 1872, time being declared to be of the 
essence of the contract, to which contract and to the Acts of Parliament relating to 
the Intercolonial Kailway for greater certainty I crave leave to refer. 

3. I deny a's alleged in the second paragraph of the said petition that the con- 
tract entered into between Her Majesty and tne said Thomas Boggs and the said 
suppliant for the completion of the said section 19 was, or is, save and except as to 
the date thereof and the date therein mentioned for the completion of the works 
therein specified in form, substance and effect the same as the eontract made and entered 
into between Her Majesty and the said Samuel Parker Tuck with respect to the said 
section, but on the contrary I say that the sum mentioned as the consideration to be 
paid by Her Majesty for the completion to the said Boggs and the suppliant was less 
oy $51,000.00 than the sum agreed to be paid by Her Majesty to the said Tuck, inas- 
much as the said Tuck had performed work in connection with the said section to the 
value of the said sum of $51,000.00 previous to the transfer of the works to the said 
Boggs and the suppliant as hereinbefore mentioned and had been paid and satisfied 
the said sum of $51,000, and I say that the date for the completion of the said works 
by the said Boggs and the suppliant as required by their said contract was the same 
date at and upon which the said Tuck was to have completed the same under his 
contract with Her Majesty. 

4. In and by the tender of the said Samuel Parker Tuck referred to in the 
contract between Her Majesty and the said Thomas Boggs and the suppliant as 
annexed thereto, and which, as declared therein, was to be read and treated as part 
and parcel of the said last-mentioned contract ; it was set forth that the said Samuel 
Parker Tuck having seen the plans and profiles of said section 19 thereby tendered 
to construct said section in accordance with the plans and profiles and all other 
detailed plans and profiles which m ight be supplied and in accordance with the gen- 
eral specifications signed by the Commissioners, and dated Ottawa, 26th January, 

18 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



1870 (and to execute a contract, a form of which was printed as thereby stated, and 
as the fact was at the end of the specifications), binding himself not to demand any 
extras of finy kind whatever, for the sura of SSOSjTSS, and the said Samuel Parker Tuck 
bound himself to complete said section for the above-named sum to the satisfaction 
of the Chief Engineer and Commissioners for the above-named sum, sucl^ sum to bo 
full payment, without extras of any kind, for the entire completion of the said section. 

5. In preparing the said plans and specifications and in inviting tenders for 
the construction of the works of the said railway it was contemplated by the 
said Commissioners that the plans or specifications might have to be altered or 
varied, and that other works might be required for the due and proper construction 
of the line of railway, and I say that before they entered into the said contract the 
fiaid contractors were well aware that the contract price was intended to cover the 
cost of any such alterations or variations in the plans or specifications, and of any 
other or additional works which might be required, unless such alterations or varia- 
tions should arise from changes of grade or of the line location. 

6. In the Bill of Works referred to in the suppliant's petition, and which was 
known to the contractors and to the suppliant before they tendered for the said 
work or entered into the said contracts respectively, it is expressly stipulated 
among other things that if circumstances should require any change in the estimated 
number, position, water-way or dimensions of the structures proposed for the passage 
of streams and general surface drainage across the line of railway; the contract 
should provide that all such changes should be made by the contractors without any 
extra charge, and I crave leave for greater certainty to refer to the said Bill of Works 
Tvhen the same shall be produced to this Honorable Court. 

7. The contractors and the suppliant entered into the said respective contracts 
with a full knowledge of the contents of the said Bill of Works, and that the estimates 
contained and referred to therein, and the said plans and specifications were merely 
approximate, and were subject to be altered, varied and added to as aforesaid, as 
circumstances might require. 

3. I deny that there were any misrepresentations in the said plan or Bill of Works ; 
but if there were any inaccuracies therein the contractors were distinctly warned not 
to rely thereon, but to make such allowance therefor in their tender as they thought 
fit. 

9. I deny the suppliant's right to any relief by reason of any matter or thing 
antecedent to the said contract, or not arising strictly out of the terms thereof, and 
on behalf of Bfer Majesty I demur to so much of the suppliant's claim and grounds of 
relief as is based upon matters outside of the express terms of the said contract. 

10. I am not aware of the fact of the death of the said Thomas Boggs, alleged 
in the third paragraph of the suppliant's petition, and I put the supplicant to the 
proof thereof, and in default of such proof I submit, and on behalf of Her Majesty 
insist, that the said Thomas Boggs is a necessary party to the said petition, and that 
in the absence of the said Thomas Boggs no relief can be granted to the suppliant. 

11. I deny that the said Thomas Boggs and the said suppliant performed the 
works by them to be performed under the said contract according to the same, or 
that the same were completed without unavoidable delay on their part, or on 
the part of either of them, but I charge the fact to be that oy the actu^ default of 
the said contractors the said works were not finished until long after the time agreed 
upon in and by the said contract, namely, the Ist day of July, A.D. 1872, and E claim 
on behalf of licr Majesty the benefit of the stipulations contained in the third para- 
graph of the said contract, and that by the said default the said contractors forfeited 
all money then or now due and owing to them under the terms ©f the said contract, 
and also the further sum of $2,000 per week for all the time during which the said 
works remained incomplete after the said 1st day of July, A.D. 1872, by way of 
liquidated damages for such default, and I crave leave, on behalf of Her Majesty, to 
deduct, retain and set off the said sum of $2,000 per week, amounting in the whole to 
upwards of §150,000, from out of and against the claims of the suppliant in his said 
petition. 

19 
42 1-2 J 



42 Victoria. Seasionai; Papers (No.42 > A. 1579^ 



12. I admit, as is alleged in the said petition, that the said Thomas Bogsrs and the 
suppliant were released at their own request, by Her Majesty, from performing that 
portion of the work embraced in their said contract which consisted in the construc- 
tion of a bridge over the River Eestigoache, and that in consideration of such release; 
the contract price or sum mentioned in their said contract was reduced by the sum of ~ 
$116,000, which sum, however, was deducted from the sum of $344,733, and not from 
the sum of $395,733 as stated in the said petition. 

13. During the progress of the work it was agreed by and between the said 
Thomas Boggs and the suppliant, and Her Majesty, represented by the said Commis- 
sioners, that a further sum of $1,200 should be deducted from the said contract price 
of $344,733 in consequence of the contractors being, as the fact was, relieved from the 
construction of certain wooden bridges embraced in their contract, and Her Majesty 
is entitled under the terms of the contract to a deduction of the sum of $2,440 for 
other work which the said contractors did not perform, as also the sum of $5,185.40 
in consequence of diminution of work by change of grade and location of the said 
railway. 

14. I admit that the said Thomas Bogga and the suppliant performed some 
extra work which was not comprised in the schedule and specifications of their 
contract and connected therewith, and not intended to be covered by the sum of" 
$344,733, their contract price, nor by the balance of $238,733 which remained after 
deducting the sum ot $116,000 as aforesaid. 

15. The Commissioners took account of all work performed by the said Boggs 
and the suppliant, and for which they claimed to be entitled to be paid over and 
above their contract price, and^recommended payment for so much thereof as was not 
within the contract at fair and reasonable and proper prices. 

16. The allowance recommended and fixed by the said Commissioners to be 
made to the contractors, in respect of the said extra work so performed by them aft 
aforesaid, was the sum of $7,682, and I say that save the work allowed for by the 
said Commissioners, there were not any other works done by the contractors for 
which, by the terms of the said contract or otherwise, they were, or are, entitled to 
make or maintain, in and by their said petition, any claim against Her Majesty for 
payment, over and above the price or sum mentioned in the said contract, and I say 
that the said sum or allowance of $7,682 was, and is, a fair, reasonable and proper^ 
sum or allowance for the said works, regard being had to the nature and character 
thereof, and to the terms of the said contract, and to all the circumstances of 
the case. 

• 17. I deny paragraphs 7, 8 and 9 of the said petition, and I say that the con- 
tractors performed no extra work, for which they were entitled to be paid, in 
consequence, as alleged in the said paragraphs, of the information and data furnished 
them by the schedule of works ana quantities, prepared and published by the Chief 
Engineer of the said railway, prior to the letting of contracts for the construction of 
the said railway, and upon which the said contractors made their calculations and 
estimates when they entered into the said contract — having been defective, insuffi* 
cient and erroneous — but were it otherwise I deny the suppliant's right to relief on 
that ground. 

18. I deny that during the constiMiction of the said works the said Thomas Boggs-- 
and the suppliant, or that eithe- of them were, or was frequently and unnecessarily 
put to great expense in the construction of the said works by want of and delay ia 
preparations by the said Commif=sioners and their Engineers in acquiring right 
of way, locating line, laying out work and furnishing specifications necessary to- 
enable the said contractors to j proceed with and execute the, said work, thus 
causing the said Thomas Boggs and the suppliant, or either of them inconvenience^ 
delay and loss of labor, and other consequent loss and damage, but were the faotfir 
as alleged in paragraph 10 of said petition I deny the suppliants right to any relief^ 
in consequence. 

19. The said Thomas I>oggs and the suppliant were paid from time to tim^ 
various sums of money, amounting in the whole to th« sum of $293,344.81^ including^ 

20 



2 Yietoria. Sesnonal Papera (No.42y) A. 1879 



:sBC 



e sum of $51,000, the amoant dae to the said Samael Parker Tack at the time of 
e transfer of his said contract on section number 19, as aforebaid, and the said sum 
$7,H82, and also including a large sum paid on behalf of Her Majesty, to the 
aployees and labourers of the contractors, which the contractors had neglected to 
^y, and regard being had to the sums mentioned in paragraph 13 of this defence, 
bich the Commissioners were, by the terms of the contract, entitled to deduct from 
eir contract price — the said contractors received a sum largely in excess of their 
id contract price. 

20. The suppliant and the said Thomas Boggs are not, nor is either of them, 
ititled to any payment, except on the certificate of the Engineer, and they have 
\en paid all that they have received the Engineer's certificate for, and I submit and 
Large that all the just claims of the suppliant against Her ^Majesty were satisfied 
id discharged, by payment, long before the filing oj* the said petition. 

21. The matters complaimed of by the suppliant, and all the claims set up in the 
id petition, and all matters in ditference between the suppliant and the Govera- 
ent, have been considered and decided by the Commissioners from time to time^ 
;ainst the suppliant, and such decision, according to the terms of the said contract^ 
e final and conclusive. 

22. On behalf of Her Majesty I pray that the said petition may be dismissed 
ith costs. 

A. F. liFoINTYRB, 

For the Attamey-GenerdL 



IN THE EXCHEQUER COURT OF CANADA. 

The 11th day of January, A.D. 18T7. 



i the matter of the Petition of Right of JO EN R. MURRA 7. 

The Suppliant, for reply to the statement of defence of the Honorable Edward 
lake, Her Majesty's Attorney-General for the Dominion of Canada, takes issue upon 
e said statement of defence. 

And for a further reply to the 11th paragraph of the said statement of defence, 
e Suppliant says, that Her Majesty, through and by the Commissioners aforesaid, 
:onerated and discharged the Suppliant from the said penalty, and waived and 
scinded the same. 

And for a further reply to the said 11th paragraph of the said statement of 
»fence, the Suppliant says, that Her Majesty, through and by the negligence, mis- 
induct, delays and laches of the said Commisbioners, and of the Engineers and other 
ficers employed by the said Commissioners, caused the delay and default in the said 
.th paragraph alleged, and therefore the said contractors did not forfeit all or any 
oney then or now due or owing to them, or to the Suppliant, under the terms of 
e said contract ; and the said Attorney-General should not have leave, on behalf of 
er Majesty, to deduct, retain, and set olf the sum of $2,000 per week from out of 
id against the claim of the said Suppliant, as prayed in the said 11th paragraph. 

G. J. O'DOHBRTY, 

Attorney for the Suppliant. 

JOHN O'CONNOR, 

Counsel for the Suppliant. 



21 



42 Victoria. Sessional Papcis (No. 4 2.) A. 187ft 



IN THE EICHEQUEB CODET OF CANADA. 

The twenty- ninth day of January, A.D. ISYY. 



John B. Hurray, 

Suppliant. 

The Queen 

Defendant. 

The Honorable Edward Blake, Her Majesty's Attorney-General for the Dominion 
of Canada, joins iaaue on the Suppliant's replication* 

A. P. MoINTYBB, 

For the Attorney-General 



IN THE EXCHEQUEB COUET. 



In the matter of the Petition of Bight of 

John B. Mitrrat, 

Petitioner. 

vs. 

The Queen, 

Defendant. 

Upon reading the summons granted herein, and the affidavit of service thereof 
and upon hearing counsel for all parties, I do order that the trial or hearing of this 
matter do take place before a Judge of this Court, at the Court House in the City of 
Ottawa, or at such other place in the said City as the said Judge shall direct, on Thurs- 
day, the tenth day of May, A.D. 187*7,at eleven o'clock in the forenoon, or so soon there- 
after as the said Judge shall attend ; and I do further order, that notice of tKal at the 
time and place aforesaid, together with a copy of this order, be, within three days 
from the date hereof, served on Her Majesty's Attorney-General for the Dominion of 
Canada, by leaving such notice and copy of said order at the office of the said Attorney- 
General, in the City of Ottawa; and also served within the time aforesaid on Alex- 
ander F. Mclntyre, Esquire, the Solicitor for the said Attorney-General, by leaving 
Buch notice and copy of said order at the office of the said Alexander F. Mclntyre. 
This order to be without prejudice to any application that may be made to the pre- 
siding Judge at the trial of this matter, by any of the parties hereto, to have part of 
the evidence taken, or the matter determined at some place other than that herein- 
before appointed, under the provisions of the Statute in that behalf. 

Dated at Chambers, this 20th day of April, A.D. 1877. 

WM. B. BICHABDS, 

C.J. 



22 



2 Victoria. SeBiaonal Papers (No. 42.) A. 1879 



2^ 



DlPARTMENT OF JuSTtOB, 

Ottawa, May 15th, 18^6. 

Petitions #/ Right of Starr and De Wolf, O'Brien, Jones^ Murray, BerUnquet, 
ertrand. 

Sib, — ^I understand that petitions of right in all these cases are in the hands of 
X. Brydges, for the preparation of the papers necessary for the defence ; and I have 
[aced Mr. Mclntyre, Barrister, of this city, in communication with Mr. Brydges, in 
•der to facilitate the work. 

I thall be glad to receive the memorandum, as soon as convenient, unless they 
2kve been handed to Mr. Mclntyre. 

I am, Sir, 

Tour obedient servant, 

(Signed) EDWARD BLAKE, M.D.J. 

he Honorable 

The Minister of Public Works. 



Ottawa, 19th May, 1876. 

Sir, — I am directed to inform you that in the matter of the petition of right of 
ohn K Murray, His Excellency tbe Governor -General, has been pleased to grant 
is fiat, that right be done to the party, a^d that the petition with His Excellency's 
at endorsed thereon has been transmitted to Mr, George J. O'Doherty, of Ottawa, 
►nt, his Attorney. 

I have tbe honor to be, 

Your obedient servant, 

(Signed) EDOUARD LANGBVUST, 

Under-Secretary of State. 
'he Honorable 

The Minister of PublicJWorks. 



Deartment of Public Works, 

In tee Exchequer Court. 

John E. Murray 

vs. 

The Queen. 

Tfcke notice that T, the undersigneil James G. Foster, of Halifax, Nova Scotia, 
nd the duly appointed assi/rnee under the Insolvent Act of 18'7'>, of the estate of the 
.bovenamed plaintiff, and that as such a8si<jrnee I am entitled on behalf of plaintiff's 
reditors to receive the proceeds, if any, which raay be adjudged due to the plaintiff 
tt the above suit, and I hereby on behalf of the plaintiff's creditors, caution the 
rove 'n men t of the Dominion of Canada, the officers of the said Court, and all and 
ver^ other person or persons whom it may concern, against paying over the amount 
•r ajy part thereof which may be awarded to the plaintiff by the Court in the above 
aus3 to any person or persons whomsoever, except to myself, or upon my authority 
kud order in writing. 

Dated at Ottawa, this 24th day of September, A.D., 1877. 

Yours, Ac, 

JAMES G. FOSTER, 

Assignee of the Plaintiff, 
23 



42 Victoria. 



Sessional Papers (No.42») 



A. 1879 



In thfi' Exchequer Courts the Queen vs. JoJm E, Murray. 

Halifax, N. S., September 6th, 1878. 

Sir, — Beferring to a notice in the above matter filed by me in your office Sep- 
tember 24th, 1877, I now beg to enchase herewith a certified copy of the, — or copi«i 
of the records forming my appointment as Assignee of the estate of said John B. 
Uarray an insolvent, and under which I claim {.ayment of the proceeds oi any jadg- 
xnent in his favor in said cause. 

I have the honor to be, Sir, 

Your obedient servant, 



(Signed) 



Honorable the Premier. 



JAMBS G. FOSTER, 

Assignee of 

JOHW K. MURRAY. 



DOMINION OF CANADA. 



PROVINOS OF NOVA SCOTIA. 



I, Martin J. Wilkins, of Halifax, Clerk of the County Court of Instrict No. 1, inth« 
Province of Nova Scotia, in the Dominion of Canada, do certify to all persons whom 
it may concern that the annexed are true copies of the ap{)ointni6nt of William W. 
Groom as assignee of the estate of John R. Murray, an insolvent under the Insolvent 
Act of the Dominion of Canada, and also of the minutes of a meeting of the creditorB 
of the said insolvent and the appointment thereat of James G. Foster, Enq., assignee 
of the said estate, which original record of the said appointments are duly filed in 
my office. 

In witness whereof I have hereunto affixed the seal of the County Court at Halifax, 
in the Province of Nova Scotia, this seventh day of September, in the year of Oar 
Jjord one thousand eight hundred and seventy-eight. 

(Signed) M. J. WILKINS, 

Clerk. 



Ofticb of Official Assiones, 

Halifax, N.S. 

I the undersigned Official Assignee for the County and City of Halifax hereby 
certify : That at a meeting of creditors of John R. Murray, insolvent, duly calhd and 
held at Halifax on the third day of February, 1876, it was moved and seconded that 
Mr. William W. Groom be assignee to said estate, which, being put to the mcdting, 
duly passed. 

Given under my hand at Halifax, this thirty- first day of August, 1878. 



(Signed) 



W. H. CRBIGHTON, 

Official Assignee^ 
County and City ot Halifax. 



(Signed) 



M. J. WILKINS, 

Clerk. 



U 



Victoria. Sessional Papers (No 42.) A. 18T9 



B. 

Meeting of creditors John K. Murray at office of the assignee, W. W. Groom, 
ursday, May, 1876, for the purpose of appointing an assignee in place of Mr. 
oom, receiving statement of affairs, &c., &c. 

E. D. Adams was appointed Secretary. Present : Messrs. W. J. Lewis, J. S. D. 
Lompson, J. Penfold, George Laing, Meagher, W. F. Won*all, John Woodill, Foster, 
lams, R Taylor, C. Graham, J. T. Wood, Thomas Bayne, and the Insolvent. 

Minutes of last meeting were read and approved. 

Assignee road statement of affairs shewing cash and notes on hand amounting 
$4,802.23 less disbursements to date $ 

The bank-book was produced shewing a balance of $1704.33 to credit of the estate. 

Mr. Lewis moved that Mr. Groom receive the sum of $200 for his services as 
aignee to date. Mr. Foster seconded the motion ; passed unanimously. 

Mr. W. F. Worrall moved a resolution that Mr. Groom be removed from the 
ice of assignee. Mr. Foster seconded the resolution, which passed unanimously. 

Mr. Thompson representing William Nesbet, and Mr. Meagher representing 
ink of Montreal, moved and seconded that Mr, James G. Foster be appointed 
Bignee; motion passed unanimously. 

Mr. Foster thon took the chair. Mr. Meagher (Bank of Montreal) moved that 
e assignee be required to give security to the amount of one thousand dollars; 
Donded by Mr. Worrall (J. J. Fraser & Co.'s Estate), and passed unanimously. 

Mr. Meagher read a statement relative to a search into the records concerning 
r. Murray's property. 

Mr. Thompson moved the following resolution: that upon the Inspectors report- 
g that the accounts of said W. W. Groom, the retiring assignee of said estate, are 
•rrect, and upon his paying over and delivering to the new assignee all books, 
Kxis, moneys, and other propeft}' of said estate, the said retiring assignee shall bo 
>rmitted to obtain his discharge from the Court or a Judge. Resolution was seoond- 
. by Robert Taylor, and passed unanimously. 

On motion of Mr. Taylor, seconded by Mr. Groom, a bill of Messrs. James & 
>ster for services to the estate amounting to $39 was ordered to be paid. 

ligned) M. J. WILKINS, (Signed) JAMES G. FOSTER, 

Clerk. Assignee Appointed. 

(Signed) W. W. GROOM, 

Estate Assignee, 

(Signed) E. D. ADAMS, 

Secretary. 



Ottawa, 9th December, 1878. 

Ee Section 19 Intercolonial Railway. 

Dear SiR,--This section was finished in the fall of 1874. We (the contractors) 
len made application for a settlement with the Government, but could not get it. 
i*ter repeated endeavors to obtain a settlement we, on the 26th January, 1876, 
>mmenced a suit (Murray vs. The Queen) by Petition of Right. The trial took place 
efore the Hon. M. Justice Fournier in June, 1877, and after waiting for a year Judge 
'ournier delivered his judgment in June, 1878, in our favor, on all the legal points 
aised by the delence, and leaving only the accounts to be taken by the Registrar of 

25 



42 Viotoiia. 



Seasioual Tapers (No. 42) 



A. 187» 



the Court (Exchequer). About the 1st August last, I called on the Hon. Mr. Mac- 
kenzie in reference to the matter when he told me that if it could be arranged in anj 
way speedier than by the tedious process of taking on account before the Eegi'^trar 
he would be happy to do so, and he requested me to have the Hon. John O'Connor, 
one of my counsel, come and see him on the subject. Mr. O'Connor and I went be- 
fore him, when after some consultation together, Mr. Mackenzie said he would pro- 
cure a copy of the judgment, and would let us hear from him in a few days. 

Nothing has since been heard from Mr. Mackenzie on the subject, nor has any- 
thing further been done. 

This is the seventh trip I have made to Ottawa on this matter since the com- 
pletion of said work, and we have been put to very great expense and loss in conse- 
quence of the delay in obtaining a settlement of our claim. 

I have the honor to be. Sir, 

Your obedient servant. 



The Hon. Dr. Tuppir, 

Minister of Public Works, 
Ottawa. 



(Signed) S. D. OAKES. 



Halifax, December 9th, 18*79. 

Sir, — I beg to call your attention to the enclosed copy of a caveat filed in your 
office previously to the change of Ministry, viz: September 29th, 1877, as it may on 
that account have escaped your notice. As soon as the G-overnment are prepared to 
pay or adjust the suit, I shall attend at Ottawa to receive the proceeds ; I trust that 
settlement will not long be delayed as many of the creditors (notably Mr. Charles 
Graham, of this city) have been put to great straits owing to Murray's estate being, 
so long unsettled, pending the termination of the suit referred to; I also trust that no 
money will be paid over by the Government on account thereof without giving me 
ample notice to attend at Ottawa. 

Your obedient servant. 



(Signed) 



Hon. Dr. Tuppkr, C.B., 

Minister of Public Works. 



JAMBS G. FOSTER, 

Assignee John B. Murray^ 



In the Exchequer Court—John B. Murray, vs. the Queen. 

Take notice that I, the undersigned James G. Foster, of Halifax, Nova Scotia, 
am the duly appointed assignee under the Insolvent Act of 187.^, of the estate of the 
above-named plantiff, and that as such assignee I am entitled on behalf of plaintifTs 
creditors to receive the proceeds, if any, which may be adjudged due to the plaintiff 
in the above suit, and I hereby on behalf of the plaintiff's creditors caution the Gov- 
ernment of the Dominion of Canada, the officers of the said Court and all and every 
other person or persons whom it may concern, against paying over the amount or any 
part thereof, which may be awarded to the plaintiff by the Court in the above cause, 
to any perpon or persons whosoever, except to myself or upon my authority and 
order in writing. 

Dated at Ottawa, this 24th day of September, A.D., 1877. 



Yours, 



(Signed) 



26 



JAMES G. FOSTEE, 

Assignee of plaintiff. 



42 Victoria. Sessional Papers (No. 42) A. 187? 

■■■■■■ ■ ji ■ ■■ I • 

In the Exchequer Court — Murray vs. the Queen, 

22n(i June, 1878. 
(^Translatim.) 

JUDGMENT OP JUDGE FOURNIEB. 

On the 15th June, 18*70, Samuel Parker Tuck, entered into a contract with the 
CommisBioners of the Intercolonial Railway acting on behalf of Her Majesty, for 
the construction of Section No. 11), of the said railway. 

After having commenced operations under his contract and performed certain 
works, Tuck declared himself unable to continue the works, with the consent of the 
Grovernment was relieved and discharged from his obligations. 

Thereupon Thomas Boggs, of the City of Halifax, deceased, and the sup* 
pliant, when doing business as co-partners, were substituted as contractors for that 
section and undertook by indenture bearing date 2nd August, 1871, in consideration 
of the sum of three hundred and ninety five thousand seven hundred and thirty- three 
dollars ($396,'733) to construct and complete the said Section No. 19 of the said rail- 
way as more particularly described in the first paragraph of the contract, and to 
supply all proper and requisite materials therefor, upon the terms and subject to the 
eonditions enumerated at length in the contract ana in the specifications thereunto 
annexed, which are declared to form paii; of the said contract. 

By their contract the suppliants were bound to complete the works for the 1st 
July 1872 ; but they were only finished in the autumn of 1874. At that time an im- 
portant correspondence took place between the Government and the contractors, by 
which the latter claimed a considerable sum, as being the balance due them on the 
contract price, as well as on certain extras. The amount prayed for by this petition 
is $490,007.38, (of which a detailed statement is given in the bill of particulars 
annexed to the petition) is far in excess of the amount which they originally 
claimed. This increase is accounted for, not only by the fact, that they have added 
several items ; but also, because they have not credited the Government with a sum 
of $293,344.80, which was paid to them in settlemont of all their claims. 

As the judgment I am about to deliver is an interlocutory judgment, I will only 
refer to such proceedings, and to such facts of the case as are yi my opinion necessary 
to support the conclusion to which I have thought proper to arrive at in this case. 

The only paragraphs of the contract which are important for the decision of the 
fuestion under consideration are the following: " 4." The Engineer shall be at liberty 
at any time before the commencement or during the construction of any portion of 
the works, to make any changes or alterations which he may deem expedient in the 
grades, the lines of location of the railway, the width of cuttings or fillings, the 
dimensions or character of structure, or in any other thing connected with the works^ 
whether or not such changes increase or diminish the work to be done or the expense 
of doing the same, and the contractor shall not be entitled to any allowance by 
reason of such changes, unless such changes consist in alterations in the grades or 
in the time of location, in which case the contractor shall be subject to such deductions 
for any diminution of works, or entitled to such allowance for increased works (as 
the case may be) as the Commissioners may deem reasonable, their decision being 
final in the matter. 

The Engineer shf 11 have full power to dismiss any foreman, workman, or other 
person employed, whom he may deem unfit for the duties assigned to him, or who 
may, in the opinion of the Engineer, be guilty of slighting the work, or of wilful 
disobedience of orders, or improper, intemperate, or disorderly conduct ; and the con- 
tractor shall forthwith supply the places of all such men so dismissed, and shall not 
employ them again on the works. 

" 9." It is distinctly understood, intended and agreed, that the said price, on 
consideration of three hundred and ninety -five thousand seven hundred and thi rty- 
three dollars ($395,733) shall be the price of, and be held to be the full compensation 
for all the works embraced in or contemplated by this contract, or which may be 

27 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



required in virtue of any of its provisions or by-law, and that the contractor shall 
Bot upon any pretext whatever, be entitled by roaaon of any changfe, alterat on, or 
addition made in or to such works, or in the said plans and specification, or by reason 
of the exercise of any of the powera vested in the Governor in Council by the said 
Act, intituled, " An Act respecting the construction of the Intercolonial Kailway," 
or in the Commissioners or Engineer by this contract, or by law to claim or demand 
any further or additional sum for extra work, or as damages or otherwise, the con- 
tractors hereby expressly waiving and abandoning all and any such claim or pre^ 
tention to all intents and purpoges|whatsoever, except as provided in the fourth section 
of this contract. 

** 1 1." And it is further mutually agreed upon by the parties hereto, that cash 
payments equal to eighty-five per cent, of the value of the works done, approximately 
made up from returns of progress measurements; will be made monthly on the 
certificate of the Engineer what the works for, or on account of which the sum 
certified has been duly executed, and upon approval of such certificate by the 
Commissioners. 

On the completion of the whole work to the satisfaction of the Engineer, a cer- 
terficato to that effect will be given, but the final or closing certificate, including the 
16 per cent, retained, will not be granted for a period ol two months thereafter. 

The prog t ess estimates shall not in any respect be taken as an acceptance of the 
work or release of the contractor from his responsibility in respect thereof; but he 
shall, at the conclusion cf the work, deliver over the same in good order according 
to the true intent and meaning of this contract and the said specification. 

The contract, and the specification thereunto annexed, are also declared to be 
subject to the provisions of the Act respecting the constiuction of the Intercolonial 
Bailway. 

By the 4th and llth sections of the above contract the contractor had no right 
to lay claims for extras, except in cases of changes consisting in alterations in the 
grades or line of location, "in which case the contractor shall be subject to such 
'* deductions ior any diminution of work, or entitled to such allowance for increased 
" woi'k (as the case may be) as the Commissioners may deem reasonable, their 
" decision being final in the matter.^' 

I The Crown's defence to the part of the retition alleging alterations in the grades 
or the line of location, may be summed up as follows: — 

The 14th paragraph, without giving any details or value, admits what certain 
extra works were performed ; 

The 15th paragraph says the Commissioners took account of all these extra 
works, and that they recommended the payjient ol the sura of $7,682 to the sup- 
pliant, being the amount at which they valued these extras; that the suppliants were 
)jaid Irom time to time the sum of $293,344.81 (including the sum of $7,68 J, and 
regard being had to the sum which the Commissioners were entitled to deduct from 
their contract price, in consequence of certain alterations ordered, that the sum of 
$293,344.83 exceeded even the amount which the suppliant was entitled to receive. 

In the 20th paragraph of the defence the Crown invokes the conditions inserted 
in the contract that no payment can be made except on the certificate of the 
Engineer, and that they have paid all that they have received the Engineer's 
certiticate for. 

Finally, the 21st paragraph of the defence of the Crown states that all the 
claimh set up in the petition, and all matters in difference between the suppliant and 
the Government, were considered and decided by the Commissioners from time to 
time against the suppliant, and such decision, according to the terms of the contract, 
is final and conclusive. 

The parties beard, respectively, several witnesses in support of their pretensions. 

At present I shall refer only to that part of the evidence which relates to the 
alteration in the grades or line of location, in order to ascertain, 1st. K there have 
been buch changes, of what they ,: consist? These changes have been taken 
into account according to the terms of the contract, ind. If the decision or rather 



42 Victoria. Sessional Papers (No42,) A* 187£ 



the order for payment made by the Commissioners on the certificates granted under 
such circumstances as established by the evidence in this case, can be considered as 
having the effect of a final and binding decision. 

As to the extras, there can be no doubt that there were many extras of the class 

described in the fourth paragraph of the contract, viz. : *' for alterations in the 

grades and line of location. '* Peter Grant, Division Engineer in charge of the works 

on Section No. 19, speaks thus of them : — 

l " There was a good deal of change of grade and change of location upon this 

r section. There was so much side hill ground after it was cleared of brush and trees, 

it was seen it could be improved — could be seen better than before when going 

1^ through the thick brush. There was not much change of grade, but there was a 

'. good deal of change of location. The country was side hill ; one and a-half to one 

r was the general average of the country, consequently when we went into any slope 

i of the railway it went clear to the top, no matter if it was a couple of hundred feet." 

fr That there were alterations in the grades, and especially in the location of the 

I lines, is a fact established beyond a doubt. These changes being the only changes 

f: under which the contractors could, under the fourth paragraph of the contract, claim 

■ any extra payment, it was not unreasonable to expect that the Engineer would have 

connect measurements made showing exactly the place where the changes took place, 

the quantity of work executed and its value, in order that the Commissioners might 

allow for any increase of works or deduct for any diminution of work, according to 

ttie terms of the contract. 

It seems all the contrary, as admitted by the Engineer himself, that the monthly 
estimates were made to cover, indiscriminately, all the work done; and when they 
were made a few days before the end of the month, a certain allowance was made up 
to the last day of the month. 

Questioned as to how these measurements were made, he answers as follows]: — 
" Q. I want to know whether you measured the actual work yourself and dis- 
tinguished carefully between the original work and the extra ? Now you say you 
did not do a quarter of it, and not sure of that ? — I do not think I had time to do 
more than a quarter. 

" Q. And, as a matter of fact, you did not do that ? — Well, yes; I would swear 
that I did a quarter of it. I worked many a hard day at it, at any rate. 

" Q. During that time, you never made any calculations respecting the diminu- 
tion or fextra charges ? — No; it was the actual work executed." 

It is evident he did not take into account the increase or diminution of the work; 
ho was satisfied with reporting the work executed without any distinction between 
the quantity of original work and the extras. He even declares that during three 
years he was under the impression that the contractors were not to suffer any dimi- 
nution of price when there would be a diminution of work. 

Grant, moreover, who had two sections to superintend, could only give part of his 
time to Section No. 19. He had, as an assistant, one, John Jellet, a rod-man, who 
studied under him to become an engineer, and whom Grant appointed afterwards as 
Assistant Engineer. 

The mode of Jellet's working, as described by himself, shows that he had a 
desire rather than the ability of doing the work well. His calculations were not 
always verified, or, if they were sometimes, it would be by parties who are not 
responsible. Sometimes, instead of measuring the work, he is satisfied by guessing 
at the amount from the number of men the contractors told him they employed. I 
will cite an extract from the testimony : — 

" Q. How much was done that month in the place where the neavy work was ? 
— ^There was an estimate given on it every time. 

" Q. How did you make that ? — Prom the men's time that were working at it. 
" Q. You guessed at the amount from the number of men working at it and the 
lime ? — Yes; that is all. 

" Q, And not from actual measurement ? — ^No." 

29 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



In reference to the " New Brunswick Cut," when he is asked how he measured 
the heights, he answers: *' 1 averaged it." 

" Q. What do 3 oii mean by averaged ? — Some places it was rough ; some places it 
would go eight feet, some places ten ; and I took the measures. 

** Q. You measured it with a tape? — In seme places, and in some places with 
the eyes, where I could not get at it." 

lie admits that he often did this. The balance of his testimony proves that the 
grades were not regularly measured. His books could not even show what he had 
measured with tape; and he declared that he did not think it was his duty to keep a 
record of his operations, which he reported to Grant. 

It may be said such reports possibly were sufficient to enable him to prepare the 
monthly estimates, which were based on an approximate quantity of the work done; 
but they cannot evidently, without injustice to the contractor, be said to contain all 
the information necessary to enable the Engineer-in-Chief, later on, to grant the final 
certificate which was to settle and satisfy all claims arising out of the contract. 
Those reports are, however, relied upon by the defence as the basis of the alleged 
Unal settlement. 

Now, these incomplete measurements made by Jellett served as a basis to Grant 
to make his reports to the Commissioners and to the Engineer-in-Chief, as well as to 
make his entries on the plans and profiles of the road and to ascertain the progress 
of the works. Later on these measurements and these entries which he has been 
unable to verify, as he admits it himself, were the means of making the reports filed 
in this case and having document marked A Z : " Eeport on item of claims of Boggs 
& Co., contractors for Section 19; " and document marked B F : " Detailed statement 
of additions to and diminution from contract." 

Speaking of the first report, he first says that the measurement was complete 
and correct to the best of his knowledge ; but on being closely examined by the 
learned counsel of the suppliant, he admits that it is neither complete nor final. 

'* Q. Why did you presume to send a report like this to the Government before 
you could ascertain whether it was accurate or not ? — I knew it was accurate, but it 
would not be binding on the Government ; I say it is accurate as far as the details 
that you see there, but I do not say it is a complete report." 

The second report, piece marked B.F. : " Detailed statement of additions to and 
diminutions from contract," being partly based on the above measurement, is not of 
a character to give confidence as to accuracy. 

Moreover, the Engineer having wrongfully made measurements in winter, at a 
time when there was in certain places over ten feet of snow over the works he was 
measuring, it is evident he could not make an accurate and complete measurement. 

Nevertheless, it was on this report addressed to Mr. Trudeau, the Deputy 
Minister of the Public Works, and referred to Mr. Collingwood Schreiber ; this last 
named gentleman makes his report to Mr. C. J. Brydges, Superintendent of the 
Intercolonial Kailway. In his turn, Mr. Brydges, relying entirely on Mr. Schreiber's 
report, reports to the Minister of Public Works on the 2nd September, 18*75, that the 
suppliants owe a balance of $12,815.21. All these reports, it is seen, are based upon 
the inaccurate and incomplete measurements of Grant and of his assistant, Jellett 
On the receipt of this last report, that of Mr. Brydges, the Minister of Public Works 
did not come to a final decision. 

The uppliants having protested against these reports prayed for by these letters 
of the 1 L and *7th of December, 18*75, and obtained from the Minister of Public Works 
having then all the powers of the Commissioners by virtue of the Statute 37 Vic, c. 
15, that an important portion of their claim should be referred to another Engineer, 
viz. : that portion having reference to the extras above mentioned. 

The Minister of Public Works* answer, sent through the Secretary of the Depart- 
ment of Public Works, is thus worded : — 

30 



42 Victoria. Sessional Papers (No. 42.) A. 187U 



■'■■-'-' ... -. .. ^i-.-Kj ■■ ■'■. ■■■...., iw^-. 



" Ottawa, 14th December, 1875. 

" Gentlemen, — Eeferring to your letter of the *7th instant respecting your con- 
tract for the construction oi.Soction 19, Intercolonial Eailway, I am to -jtate that 
Mr. Sandford Fleming has been instructed to have a re-measurement made of the 
work done on the portions of the railway where lines or gradients originally con- 
tracted ior have been deviated from." 

This decision is certainly in accord with justice and in conformity with the mean- 
ing of the contract, which, by giving to the ^contractor the right of being paid for 
these extras, necessarily implies the obligation of keeping an accurate account by 
measurement of the increase and of the diminution of the work. 

The Minister of Public Woi ks being then clothed with all the powers of the 
CJommissioners to execute the contract, was certainly acting within the scope of his 
authority, and his decision did not in anywise contravene any of the provisions of 
the Statute relating to the Intercolonial Eailway. 

The distinction between work done under the contract and work done as extra 
not having been made in the monthly estimates forwarded to the Commissioners, it 
cannot be said that the matters in difference between the contractors and Commis- 
sioners were settled. 

The fourth paragraph of the contract, it is true, gives them theright of deciding 
such matters in the following terms : — " The contractor shall be subject to such deduc- 
tion for any diminution of work, or entitled to such allowonce for increased work 
(as the case may be), as the Cammissioners may deem reasonable." 

Now, if the contractors had a right in such a case to the value of the extra work, 
and if the Governmeat had a right to a diminution of price, it seems perfectly clear 
that there exists the obligation of measuring accurately the amount of increased 
work and the amount of diminution in order to get at the proper amount to be 
allowed to each party. 

Without this information the Commissioners could not give their decision on 
this point, which, moreover, does not peem to have been settled by them. They 
ordered payments to be made on the monthly estimates of Grant, made, as I have 
already stated, without distinguishing the extra work from that done under the con- 
tract, but they never gave a decision as to the amount due for extra. I consider, 
therefore, that the 15th paragraph of the defence has not been proved. 

Moreover, their powers having ceased on the 26th May, 1874, by the Statute 
above cited, and the works not being completed till the autumn of the same year,they 
cannot have been called upon to give a final decision on the matters in difference 
which took place after they had ceased to exercise their powers. By the same Statute, 
their powers having been transferred to the Minister of Public Works, it is for him 
to decide that which he was unable to do for want of sufficient information, as shown 
by his letter of the 14th December, 1875. 

Although this letter contains a formal order, it is not in evidence that it was 
carried out. 

The correspondence between the pai ties seems to have rested there when the 
present petition was brought before this Court. 

It is true that by refusing the petition the Crown does not lose or gain any 
mode of defence which it previously had; but on the other hand the petitioners must 
also remain in the same position they retain whatever rights they had acquired in 
their relation with the Government in the execution of their contract. 

The letter of the 14th December, 1875, admitting that sufficient measurements 
had not been made to establish the quantity of increased work or diminution of work 
proves necessarily that without the fulfilment of this condition it is impossible to 
arrive at a final settlement. 

The contention of the Crown, based on the want of a final certificate as alleged 
in their defence cannot be maintained, for the letter of the 14th December, 1875 is a 
formal waiver of this mode of defence, of which the Crown cannot now avail itself, 
except with the consent of the petitioners who acquired the benefit of this waiver 
the moment it was made. 

31 



42 Victoria. 



Sessional Papers (No. 42») 



A. 1879 



I am therefore of opinion that there is no evidence to show that the Commis- 
sioners or the Minister of Public Works ever gave their decision on this part of the 
defence which relates to the extra work in question. 

On the contrary, there is evidence that the Qonorable the Minister of Pablio 
Works, before deciding the matter in difference, ordered a new measurement of these 
extra works. (Being persuaded, after a careful perusal of the evidence, that it is im- 
possible to render justice to the parties without this measurement, I consider it mj 
duty, reserving to myself the right of adjudging afterwards on the merits of the case, 
to Older that this case be referred to the Registrar of this Court, to obtain such legal 
evidence as can be adduced by the parties for the purpose ef getting the number and 
quantity of alterations of the location, and of the grade which either increased or 
diminished, as the case may be, the work under contract, and of aacertaining the 
value of such increase or dimunition, and the balance which may be due to either 
party after these operations.) 

Costs reserved. 



Ottawa, 19th December, 1878. 

Sir,— I have the honor to refer to you herewith papers relative to the claim of 
Mr. S. I). Oakes, in connection with his contract, Section No. 19, Intercolonial Bul- 
way, comprising a copy of the judgment upon the case delivered by Judge Foumier, 
in the Exeheqer Court. I have to request that the Department may he advised as 
to its competency to take this matter out of the hands of the court as requested by 
Mr. Oakes. 

I have the honor to be. Sir, 

Your obedient servant. 



(Signed) 



Z. A. Labh, Esq., 

Deputy Minister of Justice. 



F. BRAUSr, 

Secretary. 



DSPARTMENT OF PUBLIO WORKS. 

19th December, 18TO. 

Sir, — ^I have to acknowledge receipt of your letter of the 9th instant, enclosing 
copy of caveat in re the petition of right of Mr. John B. Murray. 

I am. Sir, 

Your obedient servant. 



(Signed) 



Jambs G. Fostkr, Esq., 

Halifax, I^. S. 



F. BRAUN, 

Secretary, 



Ottawa, 26th December, 18t8. 

Dpon the reference from the Department of Public Works with the papen 
relative to the claim of Mr. S. D. Oakes, in connection with the contract for section 
19, Intercolonial Eailway, I beg to report : — 

The proceedings in the Exchequer Court, under the petition of right relating to 
the section referred to, were taken in the name of John R. Murray. 

Mr. Oakes' name does not appear in the case, and his letter of the 9th instant to 
the Minister of Public Works is the only oflS^cial intimation I have received that h» 
has any interest in the suit. 

32 



1 



I Victoria. Sessional Papers (No. 42) A. 1879 



I presume, before 9>ny money is paid to him, his right to receive the same will be 
ily ascertained. 

The position of the matter at present is as follows : — 

In the petition of right Mr. Murray claims a large sum as due under the contract 
d for extras. 

The Crown's defence in effect was that under the terms of the contract the con- 
ictor was entitled to nothing except upon the certificate of the Intercolonial Eail- 
ly Commissioners (now represented by the Minister of Public Works), and that he 
d been paid everything for which the Commissioners or the Minister had certified 
d that the balance payable to him had been ascertained by the Commissioners or 
Inister and paid. 

The case was tried before Mr. Justice Fournier. 

One of the terms of the contract was that the Engineer should be at liberty at 
y time to make any changes or alterations which he might deem expedient in the 
ades, lines of location of the railway, the width of cuttings or fillings, the dimen- 
)n8 or character of structures, or in any other thing connected with the works, 
lether or not such changes should increase or dimisish the work to be done or the 
pense of doing the same, and that the contractor should not be entitled to any 
lowance by reason of such changes unless such changes consist in alterations in the 
ades or in the line of location, in which case the contractor should be subject to 
ch deductions for any diminution of or entitled to such allowance for increase of 
ork (as the case might be) as the Commissioners might deem reasonable, their deci- 
>n being final in the matter. 

The contract further provided that the price named therein (which was a lump 
m of $395,'733) should be the full compensation for all the works embraced or 
•ntemplated in the contract ; and that the contractor should not, upon any pretext 
hatever, be entitled by reason of any change to an any further sums for extra work 
' as damages or otherwise, except as provided by the clause referred to respecting 
e change in the grade or line of location, 

Mr. Justice Fournier held that, as a matter of fact, changes had taken place in 
le grades and lines of location, which entitled the contractor to a decision by the 
^mmissioners (or the Ministers as representing them) as to whether such changed 
ibjected the contractor to a deduction for diminution of work, or entitled him to an 
lowance for increased work. He held further that, as a matter of fact, such deci- 
on had never been come to by the Commissioners or by the Minister. 

That, therefore, it was impossible to say what amount (if anyj the contractor 
as entitled to on account of these changes, and he referred it to the Eegistrar of the 
)urt " to obtain such legal evidence as could be adduced by the parties for the pur- 
)se of getting the number and quantity of alterations of the location and of the 
'ades which either increased or diminished (as the case might be) the work under 
>ntract, and of ascertaining the value of such increase or diminuition and the balance 
hich might be due to either party after these calculations were made." 

The Eegistrar has not yet taken any proceedings under this order, and Mr. 
akes now asks that the Department of Public Works should do what the learned 
idge has referred to be done by the Eegistrar of the Court. 

I see no legal objection to the Department undertaking to settle the matter and 
• make the necessary measurements and calculations, &c. ; but it should be done by 
le Department only upon the parties entering into an agreement to abide by the 
jcision which may be come to, leaving nothing for the Court to do in the case except 
t make the necessary order or decree to carry out such agreement, and to decide 
3on the question of the costs of the legal proceedings. 

Should the Minister of Public "Works conclude to undertake the decision of the 
lestions now referred to the Eegistrar, I recommend that this Department be so 
[formed, in order that the necessary agreement may be prepared before anything 
LTther is done. 

Papers returned, 
33 
42 t— 3 



42 Victoila. Sesfflonal Papers (N6.4%) A. 1879 



I may mention here, although it has no direct connection with the particular 
question involved in the above report, that Mr. James G. Foster, of Halifax, in Sep- 
tember, ISTT, gave a notice to the Department of Public Works, to this Department, 
and, I believe, also to the Eegistrar of the Exchequer Court, stating that he was the 
duly appointed assignee, under the Insolvent Act of 1875, of the estate of Mr. John 
E. Murray, and that as such assignee, he was entitled to claim the proceeds (if any) 
which might be adjudged to Mr. Murray in " the suit j " and he cautioned the Grov- 
vernment against paying over the amount, or any part thereof, to any person other 
than himself, as such assignee. 

In case that it should be decided that anything is due to Mr. Murray in the suit, 
I recommend that no payment be made until the claim made by Mr. Foster is inves- 
tigated and decided upon. 

(Signed) Z. A. LASH, 

Deputy Minister Justice. 



Ottawa, 30th December, 1878. 
Murray vs. The Queen. 

As you are aware, all the legal points in this case, which has been in Court for 
over two years, have been decided in favor of the plaintiff, and it only remains now 
to take an account of what is due to the plaintiff. 

The delay consequent on taking the accounts in the usual manner before the 
Eegistrar of the Exchequer Court would be disastrous to Mitchell and Cakes, the 
beneficial plaintiff, and others interested in receiving the moneys. 

I have to request that the amount be ascertained by an arbitrator, to whom the 
accounts should be referred with instructions to make an award with the least pos- 
sible delay. I beg leave to submit the name of either Hiram Duncan, Civil Engi- 
neer, New Glasgow, who has charge of the eastern extention, or of Henry Gray, 
Civil Engineer, Halifax, who have ^th been in the employ of the Dominion Govern- 
ment on the Intercolonial Eailway. 

I have the honor to be. Sir, 

Your obedient servant, 

(Signed) G. J. O'DOHEETY, 

Solicitor for Plaintiff. 
The Honorable Dr. Tupper, 

Minister of Public Works, Ottawa. 



Ottawa, 3rd January, 1878. 
Murray vs. The Queen. 

Dear Sir, — The witnesses for the plaintiff will be here in a couple of days when 
we intend to proceed with this case before the registrar. 

In order to prevent delay, which may arise by reason of the absence of Engineers 
or others whom you may require as witnesses for the defence, I beg leave to request 
that you will not allow any of your intended witnesses over whom you have control 
to leave town till after their evidence is taken. 

I have the honor to be, Sir, 

Your most obedient servant, 

(Signed) G. J. O'DOHEETY. 
The Hon. C. Tupper, M.D., 

Minister of Public Works. 

34 



2 Victoria. Sesdonal Papers (No. 42.) A. 1879 



Ottawa, 8th January, 1879. 

MuREAY vs. The Queeit. 

Sir, — ^I beg leave to withdraw my letter of the 3rd instant, asking a reference to 
e Eegistrar, and to say that I agree to your proposal to substitute the name of Mr. 
alter Shanly, C.E., for that of Mr. Stark, to whom my client objects. 

I have the honor to be, Sir, 

Your most obedient servant, 

(Signed) G. J. O'DOHEETY. 
[le Hon. C. Tupper, C.B., M.D., 

Minister of Public Works, Ottawa. 



Department of Public Works, 

9th January, 1819. 

If you consent, the Government will appoint you to examine accounts in Inter* 
>lonial Eailway case of Murray vs. The Queen, before the Exchequer Court. 

(Signed) F. BEAUN, 

Secretary. 
'"alter Shanly, Montreal. 



Ottawa, 10th January, 1878. 

Sir, — Murray vs. The Queen. — Mr. Shanly having declined to act as referee in 
le matter, I beg to say the plaintiffs will accept your nomination of Mr. Samuel 
Reefer, C.B., instead of the Eegistrar. 

I have the honor to be, Sir, 

Your most obedient servant, 

(Signed) G. J. O^DOHBETY, 

Council for Plaintiffs. 
he Hon. C. Tupper, C.B., M.D., M.P., 

Minister of Public Works, 
Ottawa. 



In the Exchequer Court of Canada. Between John R. Murray and the Queen. 

Whereas, by the interim judgment delivered by the Honorable Mr. Justice 
ournier in this cause on the 22nd day of Jane, A.D. 1878, h^ directed a reference to 
18 Eegistrar of the Exchequer Court for certain purposes. 

And whereas, such reference has not been proceeded with, and the parties have 
yreed, instead of proceeding with such reference, to refer tc Mr. Samuel Keefer^ 
ivil Engineer, the whole claim made by the petitioners in this cause, in order that 
e may, as an arbitrator, investigate the same, and make his award thereon, declaring 
ow much (if any) the petitioner is entitled to receive from Her Majesty in conneo- 
on with the claim brought forward in the petition of right, or how much (if any) 
[er Majesty may be entitled to receive from the petitioner ; the costs of the proceea- 
igs in the Exchequer Court to be taxed by the proper officer of that Court to the 
iccessful party, and the costs under this reference to be decided by the said arbitra- 
)r, who shall have power to allow to the successful party such sum for said last- 
lentioned costs as he shall deem proper. 

35 
42f— 3J 



42 Victoria. Sesdonal Papers (No. 4^) A. 1871 



And whereas. Her Majesty abandons all claim to the penalties mentioned inHie 
contracts forming the subject of this action, and in Her Majesty's statement of defence 
for the non-completion of the works mentioned in said contract within the timA 
therein mentioned for the same. 

Now, it is agreed that petitioner's said claim in this cause be and is hereby 
referred to the said Samuel Keefer for the purpose and upon the terms aforesaid; tibft 
said Samuel Keefer, to commence proceedings under this reference within ten dayi. 
from the date hereof, and to complete the reference with all due despatch, and mm 
his award within two months from this date j it being agreed, that any one of thi 
Judges of the said Exchequer Court may, on the application of either party, either 
before or after the expiration of said two months, or of any extended time, from tima 
to time, extend the time for making such award, the award of the said arbitrator to 
be final *, and that judgment may be entered into this cause for such amount (if any) 
as the said arbitrator shall find in favor of either party in like manner as if the partaa 
had proceeded with said reference before said Begistrar, and ho had reported in &vor 
of either of said parties. 

Dated at Ottawa, this 23rd day of January, 1879. 

(Signed) G. J. O'DOHEETY, 

Counsel for Petitioner. 

« A. F. McINTYEB, 

Counsel for the Croum. 



(Memorandum,) 

Depabtment of Pitblio Works, 

Ottawa, 10th January, 1819. 

Referring to Order in Council of the 9th inst., nominating Mr. Walter Shanly, 
C. E., to make an examination of accounts in re Murray vs. the Queen, being a claim 
in connection with the building of the Intercolonial Railway, — ^Mr. Shanly having 
declined to act, the undersigned recommends that the Order in Council as above be 
cancelled, and that he be authorized to nominate Mr. Samuel Keefer, C. E,, for 
service. 

Respectfully submitted, 

(Signed) CHARLES TXJPPER, 

Minister of Public Works, 



Depastment op Public Works, 

11th January, 1879. 

With your consent, the Government will appoint you to examine accounts in 
Intercolonial Railway case of Murray vs, the Queen before the Exchequer Court 



€. Keefer, 

Brockville. 



(Signed) F. BRAUN, 

Secretary. 



36 






JZ Victoria. 



Sessional Papem (No. 42.) 



A. 1879 



No. 21.— Time 10.35 a.m. 

(By Telegraph from Brockville, to F. Braun, Secretary Public Works.) 

Ottawa, January 13th, 1879. 

I consent to serve the Government in the case of Murray and the Queen, before 
le Exchequer Court. Let me know when it comes up. 

(Signed) SAMUEL KEEFBE, 

Collect. 



yi^Y of a Report of a Committee of the Honorable the Privy Coancil, approved by Sis 
Excellency the Governor-General in Council^ on the 11th January^ 1879. 

On a memorandum dated 10th January 1879, from [the Hon. the Minister of 
ablic Works, having reference to Order in Council of the 9th inst., nominating Mr* 
'alter Shanly, C.B., to make an examination of accounts in re Murray vs, the 
aeen, being a claim in connection with the building of the Intercolonial Eailway. 

The Minister states that Mr. Shanly having declined to act, recommends that 
e Order in Council as above be cancelled, and that he be authorized to nominate 
r. Samuel Keefer, C.B., for said service. 

The Committee submit the above recommendation for Your Excellency's approval* 

Certified. 



(Signed) 



W. A. HIMSWOETH, 

(7. P. C. 



Please come soon as practicable. 



lmuel Keeper, 

Brockville. 



Department op Public Works, 

14th January, 1879. 



(Signed) 



F. BEAUN, 

Secretary. 



Department op Public Works, 

15th January, 1879. 

Sir, — An Order in Council having issued, under date the 11th instant, appointing 
r. S. Keefer, C.E., to make an examination of accounts in re Murray vs. The Queen, 
schequer Court, I am to request you will be good enough to furnish me with 
structions as to any further proceedings to be taken in connection w th that 
)pointment. "^ 

I am. Sir, 

Your o edient servant, 



(Signed) 



A. Lash, Esq., 
Deputy-Minister of Justice, 
Ottawa. 



F. BEAUN, 

Secretary. 



37 



42 Victoria. 



Sessional Papers (No. 42) 



A. 1879 



Department of Public Works, 

ITth January, 1879. 

Sir, — I have to informyou that an Order in Council has issued, under date 11th 
instant, appointin Mr. S. Keefer to make an examination of accounts in re Murray 
V5. The Queen. 

I am. Sir, 

Tour obedient servant. 



(Signed) 



S. Fleming, Esq., 

Ottawa. 



R BEAUN 

Secretary. 



Department of Public Works, 

17th January, 1879. 

Sir, — ^I have to inform you that an Order in Council has issued, under date the 
11th instant, appointing Mr. S. Keefer to make an examination of acconncs in re 
Murray vs. The Queen. 

I am. Sir, 

Your obedient servant, 



(Signed) 



S. SCHREIBER, Esq., 

Engineer, Intercolonial Eailway, 
Ottawa. 



F. BEAUN, 

Secretary. 



Department of Justice, 

Ottawa, 18th January, 1879. 

MURRAY vs. THE QUEEN. 

My Dear Sir, — The enclosed agreement, referring to the award of Mr. S. Keefer 
the claim in this case is correct in form. The effect is as follows : — 

1. The petitioner's whole claim is referred. 

2. The Crown abandons any claim for penalties on account of delay in pro- 
secuting the work. 

3. The costs of the proceedings in Court are to abide the event ; that is, the 
successful party gets them, and the costs of the reference are to be fixed by the 
arbitrator. If Council approves of the agreement an Order should be passed in the 
form of report enclosed. 

Tours truly. 



The Hon. C. Tupper. 



(Signed) Z. A, LASH. 



2 Victoria. SesAoDsl Papers {lSioA2^) A. 1&79 



Wemorandum,') 

Department op Public Works, 

Ottawa, 18th January, 18*79. 

I have the honor to report that after negotiation with the representatives of the 
3titioner in the petition of right case of John E. Murray vs. the Queen, the appended 
^reement referring the case to the award of Mr. S. Keefer, C.B., has been come to. 
recommend that authority be given to the solicitors for Her Majesty in the case to 
ake such agreement on Her behalf^ 



(Signed) CHABLES TUPPEE, 

Minister of Public Works. 



)PY of a Beport of a Committee of the Sonorahle the Privy Council, approved by His^ 
Excellency the Governor-General in Council, on the l^th January, 1879. 

On a report dated 18th January, 1879, from the Honorable the Minister of 
ablic Works, stating that after negotiations with the representatives of the 
jtitioner in the petition of nght case of John E. Murray vs. the Queen, the 
)pended agreement referring the case to the award of Mr. S. Keefer, C.B., has been 
)nie to, and recommending that authority be ffiven to the solicitors for Her Majesty 
1 the case to make such arrangement in Her oehalf. 

The Committee advise that authority be granted as recommended. 

Certified. 

(Signed) W. A. HIMSWOETH, 

C. P. C. 

:> the Honorable 

The Minister of Public Works. 



Department op Public Works, 

21st January, 1879. 

MURRAY vs. THE QUEEN. 

Sir, — ^I beg to refer to you for advice and opinion, the enclosed letter of Messrs. 
'Connor & O'Doherty, asking that an advance of five hundred dollars be made 
essrs. Mitchell and Oakes, the beneficial plaintiffs in the above case, out of the 
nount to be paid them. 

I am Sir, 

Your obedient sei'vant, 

(Signed) P. BEAUN, 

Secretary. 

. A. Lash, Esq., 

ijjj^ Deputy Minister of Justice, Ottawa. 



39 



42 Victoria. Seasional Papers (Njfc 42) A. 1879 




Department of Justioe, 

Ottawa, 22nd January, 18*79; 

Sib, — Eeferring to your letter of yesterday, asking for opinion and advice upoa 
the application made on behalf of Messrs. Mitcnell & Oakes, for an advance of $500 
on account of moneys which they claim to be due in the petition of right case, 
Murray vs. The Queen, I am directed by the Minister of Justice to say that he does 
not know what opinion or advice can be given by this Department upon the appli- 
cation other than that if the Minister of Public Works is of the opinion that the 
parties will ultimately be entitled to the sum asked for or more, it would seem fair,_ 
under the circumstances, to advance it to them now. 

The Minister desires me to say that, although the names of Messrs. Mitchell & 
Oakes do not appear in the case, yet he is aware that they have authority to receiy 
the money, to the amount asked for at least. 

I am, Sir, 

Your obedient servant, 

(Signed) Z. A. LASH, 

Deputy Minister of Justice, 

P. Braun, Esq., 

Secretary, Public Works. 






Copy of a Report of a Committee of the Honorable the Privy Oouncilj approved by Ei^- 
Excellency the Governor General in Council, on the 28th January, 1879. 

On the recommendation of the Honorable the Minister of Public Works, th^ 
Committee advise that the sum of $650 be paid to John R Murray, plaintiff in th^- 
case of Murray vs. The Queen, a Petition of Eight, on account of moneys he claim*- 
to be due to him by the Government, the same to be deducted from the amount that- 
may be awarded him by the Eeferee, Mr. Samuel Keefer, C.E. 

Certified. 

(Signed) W. A. HIMSWOETH, 

Clerk, Privy Councu^ 

The Honorable 

The Minister of Public Works. 



Public Works Department, 

6th March, 1879. 

Sir, — Will you please instruct the proper officer to furnish me with a detailed 
statement of all the moneys paid to the contractors, Messrs. Boggs & Murray, or ta 
their men, on account of their contract for Section 19 of the Intercolonial Eailway. 

Your obedient servant, 

(Signed) SAMUEL KEEFER, 

Arbitrator^ 

P. Braitn, Esq., 

Secretary, Public Works' 



40 



i Yictoria. Sessional Papers (No. 42) A. 1879 



S^esn 



IN THE EXCHEQUEE COURT OF CANADA. 



In the mattee op the Petition op Eight op John E. Murray. 



Particulars of Extras of Supplianfs Claim. 

No. 4.-15,194 cubic yards of earth, at 30c. per yard $4,558 20 

No. 5.— 13,335 " rock, at $1.25 " 16,668 W 

No. 5.-11,061 « " 2.00 " 22,122 00 

No. T.— 916 " " betweeii Stations 509 

and 520, at $4 per yard — 3,664 00 

No. 8. — 1,528 cubic yards of rock between Stations 453 and 

465, at $4 per yard 6,112 00 

The two last-mentioned items were taken up, bottoms, no face 
and very wet. 

No. 14.-2,779 yards of crib-whar6ng, at $2.50 per yard 6,94*7^50 

No. 12.-5,178 « rip-rap, at $1.50 per yard *7,*767^00 

No. 15. — 3,200 " first-class masonry, chaiiged from 

second to first-class, at $*7 per yard 22,400 00 

No. 18. — 4,715 yards ol excavation and foundation, at $1 per 

yard 4,715 00 

No. 23. — To blasting and removing rock from Stations 45 i to 

to 465, 12,018 cubic yards, at $1.25 15,022 50 

This work was ordered by the Engineer in consequence of the 
cut filling up with snow; afterwards the order was 
countermanded by Mr. Fleming or by Mr. Schreiber. 
This was partly paid lor as the work progressed, but 
afterwards deducted from our warrant. 
No. 24. — Damage sustained and cost of work in taking and 
hauling and afterwards disposing of stone at and from 
Diorite Quarry, in 1872, which stone was afterwards con- 
demned by Government Inspector, and could not be used, 
as follows: — 

Paid Chessie's land damage.... 75 00 

Scowing stone; labor, 18 days at $1.40; for 6 days, at 

$2.50; team and scow, 6 days, at $7 82 20 

Hauling stone from scow landing 20 00 

Hauling stono by teams from quarry, 9 teams for 5 

weeks— 270 days, at $4 1,080 00 

Loading stone for teams, 120 days, at $1.50 180 GO 

Eemoving stone from culverts 200 00 

No. 25 — To cash paid D, Eraser for burrow pit at Mitchell's 

house 200 00 

To labor on station grounds opposite Station 506, as per 

Engineer's orders ....... 92 00 

No. 27. — To over-haul from Station 516 to 495, earth, cubic 
yards, 14,996 ; add 30 per cent, for soft bottom, 4,498 ; 
add ten per cent for sub-siding, 1,499 ; cubic yards 20,993, 

at 28c 4,198 60 

We are entitled to borrow pit according to contract when the 
maximum haul exceeds 1,600 feet; and as no such borrow 
pit was provided for this portion of the bank, we had to 
haul as above stated. 

41 



42 Victoria. Seconal Papers (No. 42.) A.. Iff 



JSTo. 28. — To piling protection to Eraser's Flat, and embank- 
ment, Station 485 : 6,000 feet piling, at 40c., $2,400 ; 600 
leet King piles, at 50c., $300; 1,200 feet waling, at 40c., 
$480; 900 feet cross- bracing, at 40c., $360; 840 lbs. 
wrought-iron bolts, at lOc, $84; 506 cubic yards earth 
excavation per plan, at 30c., $151.80; 2,700 cubic yards 
rock put on as rip-rap, at $1.50, $4,050 7,825 00 

No. 29. — To road (highway) division at Station 114, 812 cubic 

yards rock, at 150 1,218 00 

JSTo. 32. — To building crib-wharfing between Stations 248 and 
253, 500 cubic yards, at $2.50, which work was made 
necessary by change of location of line at this place, and 
which was afterwards washed away (not included in 1st page) 1,250 00 

The crib-wharfing in above item was lost in consequence of a 
point of rock on the opposite side of the Metapediac Eiver 
(opposite Station 254 ; ice) 

Wo often applied to the Engineer to have it removed, and told 
him it was impossible for our crib wharfing to stand the 
ice which comes down in fall and spring; he said he 
applied to get it done, but could not ; but as soon as the 
section was completed, the Government put on men and 
had it removed for the protection of the crib-wharfing. 

No. 34. — To fencing station ground with a better class of fence, 
and also removing fence up the line after being built by 
Mr. Schreiber*s orders; he said it was too close to the 
line, but, owing to the river, there was no other place to 
put it. We had to pay Fraser a higher price because of 
the superior fence around station ground 60 00 

No. 35. — To extra expense in sloping rock-cut between Stations 

453 and 465 on 5,000 cubic yards, at $1.00 5,000 00 

These slopes were taken out at J to 1 slope, and when the cut 
was nearly completed we were compelled to take four feet 
more slope off at great disadvantage. We had to use scal- 
ing ladders, and suspend staging by ropes, &c. 

No. 36. — To loss sustained in not getting a borrow pit between 
Stations 480 and 506 ; the work was kept back for over 
twelve months for the want of it. We could not get Mr. 
Bell or Mr. Grant to agree with Mr. Daniel Fraser, the 
owner of the land. When Mr. Bridges came on the section 
he gave orders that we should have the borrow pit, but 
even then we had to make a private bargain with Fraser 
for the land. Our loss at the lowest was 2,000 00 

No. 37. — To soft bottom, not included in cross-section because 
of change of location. Earth borrowed from Metapediac 
Eiver of which engineers took no account; Station 410 to 420; 
Station 495 to 502 ; 148 to 170,-19,500 cubic yards, at 30c. 5,850 00 

No. 38. — To loss sustained in not receiving payments on war- 
rants promptly in the years 1873 and 1874. At one time 
Mr. Murray, of our firm, had to travel from Metapediac 
to St. Andrews, N.B., thence to Halifax, and thence to 
Ottawa, where he received a supplementary warrant. 
Owing to non-payment the men would not work, and did 
as they pleased ; a great many left altogether. This matter 
was brought to the notice of the Engineer at the time. Our 
loss was about five thousand dollars 5,000 00 



42 



$144,308 5» 



i "Victoria. Sessional Papers (Na 42.) A. 1879 



3,428 cubic yards crib wharfing from Station 24*7 to 252, at 

$2.50 per yard, (omitted in original statement.) 8,570 00 

$152,878 55 

Eoad diversion 1,200 feet. Station 460 omitted in above bill.... 1,500 00 

$154,378 55 



Department op Justice, 

Ottawa, March 19tli, 1879. 

Sm, — As requested, I have prepared a draft form of award in blank in the case 
f Murray vs, the Queen, and now send the same to you. 

The time for making the award, as you no doubt know, will expire on the 22nd 
a St., and if your award is not made on or before that date, an application should be 
aade to extend the time for making the award. 

I am, Sir, 



Samuel Keeper, Esq . , 

Department of Public Works. 



Your obedient servant, 
(Signed) Z. A. LASH, D. M. J. 



In the Exchequer Court of Canada^ between John R. Murray and the Queen, 

To all to whom these presents shall come. 

I, Samuel Keeper, Civil Engineer, send greeting : — 

Whereas, on the twenty- third day of January, A.D. 1879, the whole claim made 
by the petitioner in this cause was referred to me as arbitrator to investigate the 
same and make my award thereon, declaring how much (if any) the petitioner is 
entitled to receive from Her Majesty in connection with the claim brought forward 
in the petition of Eight, or how much (if any) Her Majesty may be entitled to receive 
from the petitioner, the costs in the proceedings in the Exchequer Court to be taxed 
by the proper officer of that Court to the successful party, and the costs under this 
reference to be decided by me, who was given power to allow to the successful party 
such sum for said last-mentioned costs as I should deem proper ; 

And whereas, by the agreement of reference, Her Majesty abandoned all claim to 
the penalties mentioned in the contracts forming the subject of this action and in 
Her Majesty's statement of defence for the non-completion of the works mentioned 
in the contract within the time therein mentioned for the same ; 

And whereas, I, as such arbitrator, was to commence proceedings under the 
reference within ten days from the date thereof, and to complete the reference with 
all due despatch and make my award within two months from the date of such 
reference, power bemg given to any one of the Judges of the said Exchequer Court 
to extend the time ior making such award : And whereas, having taken upon my- 
self the burden of said reference and duly proceeded therewith, and having 
investigated the whole claim made by the petitioner in their cause, I do hereby make 
my award thereon, and I declare : — 

1. That there was rightly due to Messrs. Boggs & Murray for work performed 
by them under their contract for Section 19 of the Intercolonial Railway, dated 2nd 
August, 1871, and executed under the oixiers and superintendence of the Government 
Engineers in charge thereof, the sum of 

at the time the work under their contract was accepted and taken off their hands 
in the spring of 1875. 

43 



42 Victoria, Seaaioiua Papen (Na42) ▲. 1879 



2. In my opinion the petitioner is entitled to interest on the above named Bdm 
at the rate of six per cent per annum, and I think it should be paid by Her Majesty 
from the month of A.D. 1875, until such sum be paid, and 
in so far as I may have power to award payment of interest against Her Majesty, I 
award the same. 

3. I award the said sum of 

(together with interest thereon, in so far as I have power to award the same) to be 
paid to the petitioner in this cause. 

4. I decide that the costs of the said reference and this award are to be paid to 
the petitioner by Her Majesty, and I allow to the said petitioner for said costs the 
sum of 

In witness thereof, I have hereunto set my hand this 
day of , A.D. 1879, at the said City of Ottawa. 

Signed, published and declared in the presence of 



Jn tJie Exchequer Court of Canada^ between John R. Murray and the Q^een. 

To all to whom these presents shall come. 

I, Samuel Keefer, Civil Engineer of Brockville, Ontario, send greeting: 

"Whereas, on the twenty-third day of January, A.D., 1879, the whole claim made 
by the petitioner in this cause was referred to me as an arbitrator, to investigate the 
same and make my award thereon, declaring how much (if any) the petitioner is en- 
titled to receive from Her Majesty, in connection with the claim brought forward in the 
petition of Eight, or how much (if any) Her Majesty may be entitled to receive froiu 
the petitioner, the costs in the proceedings in the Exchequer Court to be taxed by the 
proper oflScer of that court to the successful party, and the costs under this reference 
to be decided by me, who was given power to allow to the successful party such 
sum for said last-mentioned costs as I should deem proper. 

And whereas, by the agreement of reference. Her Majesty abandoned all claim 
to the penalties mentioned in the contracts forming the subject of this action and 
in Her Majesty's statement of defence for the non-completion of the works mentioned 
in the contracts within the time therein mentioned for the the same ; 

And whereas, I, as such arbitrator, was to commence proceedings iftider the 
reference within ten days from the date thereof, and to complete the reference with 
all due despatch, and make my award within two months from the date of such refer- 
ence, power being given to any one of the judges of the said Exchequer Court to 
extend the time for making such award ; 

And whereas, having taken upon myself the burden of said reference, and du y 
proceeded therewith, and having investigated the whole claim made by the petiti- 
oner in this cause, I do hereby make my award thereon, and I declare: 

1. That there was rightly due to Messrs. Boggs & Murray, for works performed 
by them under their contract for Section 19 of the Intercolonial Eailway, dated 2nd 
August, 1871, and executed under the orders and superintendence of the Government 
Engineers in charge thereof, the sum of seventy-nine thousand and nine hundred 
dollars ($79,900) at the time the work under their contract was accepted and taken 
off their hands in the spring of 1875. 

2. In my opinion, the petitioner is entitled to interest on the above-named sum, 
at the rate of six per cent, per annum, and I think it should be paid by Her Majesty 
from the month of April, A.D. 1875, until such sum be paid, and in so far as I may 
have power to award payment of interest against Her Majesty, 1 award the same. 

4A 



2 Yiotoria. Sessional Papers (No. 42) A. 1879 



3. I award the said sum of seventy-nine thousand and nine hundred dollars 
gether with interest thereon, in so far as I have power to award the same, t^ be 
id to the petitioner in this cause. 

4. I decide that the costs of the said reference and this award are to be paid to 
e petitioner by Her Majesty, and I allow to the said petitioner, for said costs, the 
m of eight hundred and seventy-seven dollars ($877). 

In witness whereof, I have hereunto set my hand, this twenty-first day of March, 
.D. 1879, at the said City of Ottawa. 

Signed, published, and declared, -| .g; ^^^^ SAMUEL KBEFEE, 

m presence of L v 6 y Arbitrator 

(Signed) GEOIiaE A. KEEFEE. ) Aroitraior. 



Murray vs. Queen. 

Department of Justice, 

Ottawa, March 20th, 1879. 

Sir, — The Minister of Justice directs me to say that he thinks $500 would be a 
ery liberal sum to allow for the suppliant's costs in connection with the arbitration 
roceedings — Murray vs. The Queen. 

I have the honor to be, Sir, 

Your obedient servant, 

(Signed) Z. A. LASH, 

J). M. J. 
>. Keeper, Esq., M.J.,C.E., 
Ottawa. 



MUEEAY vs. THE QUEEK 

EVIDENCE BEFORE THE ARBITRTOR. 

Ottawa, Friday, January 31st, 1879. 

James Odell, C.E. — Eelating to statements 1, 2, 3, Counsel for both parties being 
:*esent at the examination. 

S. KEEFEE. 
Eeported by A. & Geo. C. Holland, Ottawa. 



James Odell called and sworn was examined as follows : — 

Q. You are the James 0*dell who was examined on the trial of the cause ot 
urray against the Queen before Judge Fournier some time ago, in reference to 
ction nineteen of the Intercolonial Eailway ? — I am. 

Q. You have been a Civil Engineer for a erreat many years, I believe ?— I have. 

Q. You made the measurements of the work done on section nineteen of the 
itercolonial Eailway; did you not ? — I did, 

Q. In addition to the evidence you have already given, will you please state 
hat you did from station to station, and give the quantities as you found them, 
owing the increase in the work and diminution, as compared with the bill of works 
id your works ? — That is all contained in the statement which I now produce as 
aintifTs Exhibit No. 1, fyled before the arbitrator. 

45 



42 Victoria. Sessional Papers (No, 42.) A. 1879 



Q. Will you please tell us what you mean by this paper ? — ^The items there are 
just taken from the return that I made at the time of the trial, and it shows where 
the line has been altered. Those alterations I ascertained from a section which I was 
shown in Mr. Bell's office, I believe. He was the person who showed it to me there, 
and from thai I took all those items in my own return. 

Q. From the bill of works ? — From the bill of works and my own measurement, 
also. 

' Q. Who was Mr. Bell ? — An Engineer, T believe ; I do not know anything aboat 
him, except that he was in charge of the office where I saw that section. 

Q. Then you made measurements from station to station where there was a 
change of grade or change of location ? — I did not make any second measurements; 
those are the same measurements that I made when I measured the whole of the 
work. 

Q. This is a statement of the work you then did ? — Yes. 

Q. This is intended to show more particularly what you did ? — Yes ; I do not 
think there was any return handed in before of the measurements from station te 
station. 

Q. This is intended to show in detail your work ; is it not ? — ^Yes. 

Q. Will you toll us what you find by that paper to be the increase of each kind 
of work, striking a balance after, allowing for any diminution there may be ? — After 
deducting^ diminutions from the increase, it shows rock, 26,812 cubic yards ; earth, 
1,390. Those are both excavation. I made an estimate also of the embankment ; the 
total embankment is 297,106 ; the excavation is 283,202 ; leaving the excess 13,804 
yards of embankment beyond the bill of works. This is merely the excavation and 
embankment. Eip-rap, 6,800 by the bill of works, I make it 11,987, leaving a balance 
of 5,187 \ crib wharfing I make an increase of 6,2507. 

By the Arbitrator : — 

Q. Grive us the comparative quantities ? — The bill of works shows 40,000 ; my 
measurement showa 46,207. 

Q. On looking over your former evidence, do you find that there is anything yoa 
have omitted ? Will you explain your evidence on page 9,152 ? — There will be found 
a discrepency between the return I made in my evidence for the earthwork. la 
deducting the quantity by the bill of works from my measurement. I had taken on 
the bill of works what is called the abstract. The abstract shows 57,500 as the total 
rock excavation, and that is what I took, whereas the total quantity by the cross 
sections is 55.300. Then, these two items of 1»200 yards and 1,000 are added ; T had 
deducted this from my cross-sections, so I had charged the contractors with 1,000 yards 
here that I should have given them credit for. I did not measure the excavations 
for foundations, but in my retui'n I had 81,014 for the excavation by cross-sections,, 
and 367 for drains. 

Q. Then you took 57,500 instead cf 55,300 for the rock excavation ? — Yes. 

Q. Which made the amount which you should have allowed as the increased 
rock work — how much ? — Twenty-three thousand three hundred and eighty-one 
(23,381) ; In that I made a mistake in subtraction. The figures there should have 
been 23,881, I made a mistake of 500 yards thero in the subtraction. I am speakingof 
the mistake I made in my evidence before. The correct amount of rock is 24,881. 

Q. Is that increase ? — Yes, that is in the cross-sections of the whole line ; now the^ 
difference as shown by this last sheet is greater than that 24,000, because there were 
some portions where there were no alterations where the bill of work was reduced 
more than my measurements. My measurements had been less than theirs, and some 
places there was rock where there was no alteration. 

Q. I think there is another discrepency in your evidence with regard to the' 
crib-wharfing ? — Yes ; to explain that I must state I had measured the crib-wharfing 
the autumn previous to my measuring the whole work for the contractors. That woi5 
was done to settle a question between the contractors and sub-contractoVs ; I measured 
the whole of the crih-wharling, but there was one piece of it which the sub-contraotor - 

46 



42 Victoria. Sessional Papers (No. 24.) A, 187» 



told me had not been done by himself, therefore I made no return to him for it. 
When I came to measure for Mr. Mitchell, he told me that he was satisfied with that 
measurement and I need not remeasure it. Instead of taking my notebook for the 
figures I just took my return to the contractor wherein I had omitted 530 feet or 
crib-wharfing. It was simply an omission on ray part. 

Q. How much should the amount have been ? — It should have been 3,428 cubic 
yards, making the total 46,20*7, instead of 42,779. 

By the Arbitrator : — 

Q. Are the dimensions of that 3,428 yards given in your returns ? — I think not ; 
that is the result of my calculations. 

Q. What is the difference on the whole line; not alluding specially to the changes 
of grade or location ? What excess of earthwork did you find on the whole line that 
was built by Mitchell and Oakes, over and above what is laid down in the bill of 
works ? 

(Objected to on the ground that the contractors would be only entitled to receive 
the excess occasioned by the change of grade and location..) 
Objection resumed. 

A. On the whole of the line there was an excess of eartn excavation amounting 
to 28,728 yards. I found on the change of location an increase of 1,390 yards of 
excavation, and the excess of embankment 13,804. 

Q. Would you know where it was on the profile ?--I do not think I should. 

Q. Look at Station 253 on your paper, or in that vicinity ? — ^Thereis an increase 
from 245 to 277. 

Q. How long were you engaged first on the ground measuring this work ; I 
suppose part of it was done on the ground and part in the office? — Yes. 

Q. How long were you actually at work in the field making this measurement? 
— ^I cannot positively remember that now ; I have stated it in my evidence already. 
I think it was somewhere about six or eight days, but I could not be positive. 

Q. That was the last time you were there ? — Yes. 

Q. How many days were you occupied when you measured the first part of the 
work, the crib-wharfing and rip-rap ? — As well as I can speak from memory, I think 
it was five days. 

Q. Tell us how many days you worked making up your papers afterwards so as 
to complete your measurements ? — During the time I was measuring the earthwork, 
I simply measured the excavation ; I measured no embankments at all. 

Q. How did you get at the quantities in the embankments ? — I calculated them 
from the cross-sections. 

Q. How many days were you engaged altogether in doing the .whole of this 
work — how many days afterwards ?— To the best of my recollection I was seventy- 
six days altogether at the earthwork, but I cannot speak from recollection how long 
it took me to make the calculation for the crib-wharfing and rip-rap. 

Q. Will you explain how many hours a day you worked at it ? — ^I generally 
went out at seven o'clock in the morning and worked as late as I could see, 

Q. I believe you pushed through very fast? — Yes ; because the contractors told 
me they wished to have the matter brought up that summer, and I pushed it through 
as fast as I could. 

Q. So you did about two days work in one ? — Pretty nearly ; in the calculations 
I worked from eight in the morning till eleven at night. 

Q. How much were you paid for that work by Mitchell & Oakes ? — They paid 
me six dollars a day. 

Q. What was your total bill in connection with that work ? — ^That I cannot state 
from memory, because in addition to that, there was crib-wharfing and rip-rap, and I 
have no mtemorandum of that. 

Q. In what employ are you at present? — None at all. 

Q. Lately, in what employ ? — Just before I left home I was engaged in some- 
work for the Local Grovernment. 

47 



42 Victoria. Sesedonal Papers (No. 42.) A. 1879 



laz 



Orgss-eocamined : — 

Q. With the exception of having seen this plan of Mr. Bell's, you had no further 
opportunity of discovering the changes ? — ^No ; I never was on the work at all uutil 
I went there to measure it. 

Q. You never have been on the line since giving your testimony in this case ?— 
Nevor ; except passing over it on the train. 

Q. Biit never with a view to measuring it ? — No. 

Q. Tae measurements which you produce to-day have been made up upon the 
basis on which you made your former measurement, which you gave in evidence at 
the trial ? — ^Yes ; the statement is made from the same measurement. 

Q. Do you think it would have been possible for you to have cross-sectioned the 
cuttings after the earth was taken out, and arrived at any satisfactory conclusion ? — 
Yes ; the cuttings were in a condition that they could be measured, with the excep- 
tion of the centre heights, and those I had from the original cross-seetions of the work 
furnished by Mr. G-rant ; that enabled me to obtain the centre heights, and then I 
measured the sides of the slopes. 

Q, Do you assume that Mr. Grant's cross-sections are correct ? — ^I have no rea- 
son to doubt that at all. 

Q. So it was on that assumption you made your measurements ? — ^Yes ; I plotted 
my cross;sections on the original levels where there was any difference between 
them. 

Q. In making your estimate of the crib-wharfing, a^large amount of it mast have 
been done by guess work ? — "No ; I measured it all ;^I could not, of course, measure the 
rear side of it ; I assumed it was as on the tracing ; I excavated where it was neces- 
sary and measured the width on top and the depth. 

Q. Will you just give us the way in which you arrived at an estimate of the 
crib-wharfing ? — ^I measured the width on top with a tape-line, and then the dis- 
tance from the edge of the top down to the foot of the slope of the crib-wharfing 
with the tape-line, and measured the height with the level. 

By the Arbitrator : — 

Q. You excavaated to get the width of that crib-wharfing on top ? — ^Yes. 

Q. How did you get to the rear part of it ? — ^I assumed from the tracing furnished 
me by the Arbitrator that it was perpendicular. 

Q. Then, of coun?e, you wore obliged to assume the plan with reference to 
that ? — Yes ; I was furnished with a tracing of it. 

Q. All that you could measure was what you could see ? — ^Yes ; I was governed 
by exhibit " O " as to the rest of it. 

Examined by the Arbitrator : — 

Q. You have the notes of the figures in Exhibit No. 1 at home, I suppose ?— 
Yes, 

Q. What means did you take of verifying your calculations ? — ^I had the assist- 
ance of some one to check my calculations. 

Q. I see the total quantity of excavation here ; does that include the sinkage of 
embankments? — Yes; I have allowed twelve and a-half per cent, on the whole in 
the embankments. 

Q. Is it included in this 297,106 feet? — Yes; I calculated the cross-sections 
according to drawings furnished to me, and to that amount 1 added twelve and a-half 
per cent, to make up shrinkage. 

Q. What was the nature of this material generally on which you allowed twelve 
and a-half per cent, for shrinkage? — The material was good ordinary earth. There 
was some gravelly soil among it. 

Q. Was it earth that you could shovel without picking it ? — I should think most 
of it could be shovelled. 

Q. That would sink more than 12 J per cent., would it not ? — ^In some places th© 
-bottom appeared to me to be soft, so I concluded to give 12J per cent. 



42 Victoria. Sessional Papers (No 42.) A. 18/? 



Q. Then you allowed sinkage and nhriukage? — Yes ; 1 allowed twelve nnda-half 
per cent, for sinkage and shrinkage on the whole work. 

Rt-examlned : — 
Q. Do you know anything about the soft b )ltonis, one of which wa-; opposite 
Mr. Aiitchell'y house ? — No; I had never seen the work when it was in pi-ogress 
at all. 

Re-cross examined : ^ 
I Q. Add the time you were making the measurements (m the work; did you 

[ take any account ol" the difteience that was occasioned by the change of line or 
I location ? — No; I ju.st measured the work as I found it. 

Q. And you did not take any accuunt of the excess or diminution which was oc- 
casioned by the change of line ? — There were two places Mr. Mitchell pointed out to 
I me where the line had been changed, but of my own knowledge I did not know any- 
thing of it. I just took the work as I found it. 

Q. You estimated the total work that had been done in connection with that 
particular section ? Yes ; with the exception of the masonry or foundations because 
1 could not get at the foundations tj measure them. 



[ 



i 



Examined by the Arbitrator : — 

Q. Here Is a particular account of the difference where changes were made, but 
you have not given the gross amount of the whole? — In my evidence before the 
court I did. L now produce a summai-y of the whole cross-sections of the work 
marked "-So. 2." 

Q. Do I understand this to be the whole line including the places where the 
alterations are ? — Yes; including everything contained in the cross-sections. 

Q. Does it correspond with the evidence you formerly gave? — I believe it does. 
I intended that it should when I read otf the items. That is the statement I read 
them from. I also hand in another statement maiked "No. 3.^' This paper shows 
the details of calculations of miscellaneous work. 

Q. Which end of the work does Statement No. 2 begin at ? — The New Bruns- 
wick end coming down the Metapediac. 

Q. Those omissions you speak of are not in those statements? — No; I have 
given you all the information I possess, except the calculations of cross-sections. 

Q. Do you consider that you could have done that work at all without the cross- 
sections that were furnished you by the Engineer of the Department ? — No. 

Q. Nobody could have done it ? — No ; because I oould not have got the centre 
heights. I said at once, when they proposed that I should measure it, it was impos- 
sible for me to do it without the original cross-sections. 

Q. J>id you find them quite correct as far as you examined them? — Yes; I 
believe they were quite correct. Mr. Grant told me that they were not the original 
cross-sections as taken when the work was let. 

Q. Don't you think in that case, that Mr. Grant, as the Engineer of the Depart- 
ment ought to have been in a position to make those measurements more correctly 
than anyone else ? — Certainly. 

Re-examined :-"' 

Q. Could he measure them any more correctly when you had the cross-sections 
to go by, than you did? — He could, because he was more familiar with the work, and 
knew the ground before the cross-sections had been excavated — at least, if it wero- 
my own ease I should consider it so. 

And further deponent saith not. 

(Signed) GEOEGE C. HOLLAND, 

Stenographer, 



49 

42 t— 4 



42 Victoria. Sessional Papers (No. 41..) A. 187» 

Ottawa, 19th February, ISM. 
Murray vs. The Queen — Before Arbitrator Mr. S, Keefer, 
Peter Grant, called and 8 worn, was examined as follows : — 

By the Arbitrator : — 

Q. I learn from the evidence as given by you at the trial that you were the 
Engineer in charge of Section 19, from the beginning to the end, and that you are 
responsible for all the raeasiirement,s for the progress and final estimate. Now, I 
want to ask you if the levels that were taken, that I see here in the minutes, and on the 
plans and profiles, are thoy your levels or your predecessor's ? — First of all the levels 
were from the bench marks of Robert Shanly, and after the change of the assign- 
ment, I establi>hed bench marks on telegraph posts or stun.ps, or anything that 
would not be shifted by the working on the road. 

Q. Did you verify those levels ? — I did, and I sent an assistant as soon as I 
could got one. 1 think it was Mr. Cadman to verify them. 

Q. Then you satisfied yourself that they were corect ? — I did. 

Q. Did you do the same thing with regard to the rock excavation when it was 
stripped ? — \Ve took an extra cross-section where it did not exactly agree with the 
test-pits, but as a rule, with one Exception, we found the test-pits correct. 

Q. Did you make up your quantity of rock and earth excavation from these 
subsequent levels ? — Yes. 

Q. W here aie those detailed measurements ? — They ought to be in the box you 
have; I could not find them at the time this trial was going on; the papers got mixed 
up in the room ujistairs when Mr. Schreiber's clerks opened the box. 

Q. Would it be possible for you now, from the sections of either side, without 
the middle Icvel.-^ to come at the approximate quantity of rock ? — Certainly ; we 
could not get these new sections at the time the trial was going on; they were mis- 
laid at the time, bui I found them when the Court was over. 

. Q. You have leiurned the quantity of rock and earth excavation in that final 
report of yours ? — Yes. 

Q. Can you give me any of the details from which that was taken ? — ^They 
ought to be here. 

Q. Have you any private memorandum of it yourself? — I have not; the original 
ones occupied a book ot about an inch and a half thick of folio paper, and when a change 
of location took place 1 interleaved and pasted in a piece of white paper among the 
blue showing the station where the diversion started from. 

ii. Oarj you show me amongst the papers that are here the original plan of 
Section IJ^ ? — Yes; E.-chibit No. 4 is the original; and plan No. 5 is the finished 
work. Exhibit No. G is the origmal plan showing all the changes that were made. 

Q. It does notshv)w where the crib-wharting is ? — No. 

Q. Will 3'ou unde. ake to say that the tracing Exhibit No. 7 is a true copy of the 
original ?— Yes. 

Q. Between Station- 256 and 269 I see there is a discrepancy between your mea' 
suroments and the meaMi:-ements of Mr. Odell ; I want you to show in what that 
ditterenc^ consists ? — Ai- )ut 1,100 feet. 

Q You have made it in your return 1,020 feet ; Mr. Odell makes it 1,030 feet; 
whereas by that plan it appears to be 1,300 feet ?— It is l,iOO feet. 

Q. Take Stations 305 :ind317 ; what is the difference then ? — It shows 1,350 feet, 
and three culverts come in and create a blank in the crib-wharfing. 

Q. You have returnetJ only 1,050 for that ? — There would be the rip- rap in each 
end, and the blank for th<' three culverts. 

Q. That difference ought to be accounted for in the rip-rap? — Yes. 

Q. I want to know now if you measured the length of all that yourself on the 
ground ? — I did ; it was almost the last thing I did. 

Q. I observe in your evidence before you have stated that every piece of crib- 
wharfing that was put down was measured by you when it was put down ? — ^Yes. 

M 



i \\*:Uniii. ^e88lollal t\ti.\ius (No, 4 2,) A. 1879 



Q. Where are the measurements of that ? — I could not say ; I don't think they 
3ro preserved, not that I remember of; the ones that were made before the work 
as completed were preserved. 

Q. There is no possibility of measuring it now that it is covered up? — None, 
hatcver. 

Q. It is partly covered by the embankment ; is it not? — Yes. 

Q. Would any person going on there after it was finished bo able to find it all ? 
-No. 

Q. I mean to say as regards the length ? — With one exception, it would be as 
.£y to measure it to-day as then except wbere the water covers it. 

Q. You could get the length and height ? — Yes. 

Q. iiut not the averai^ce breadth ? — No. 

(i. You could get the breadth at the top, but not at the bottom ? — No; the area 
'the ditferent sections of the ciib-work varies very much — from 100 to 300 square 
et. 

Q. Did you assume that area, or did you take the actual quantities ? — We added 
le various areas together, and divided the amount by the number to arrive in the 
;ual manner at the avera<»:o aren. 

Q. Was the total quantity made up from that average area, or was it made up 
ora ihe actual measurement of each piece in detail? — It was from each piece in 
3tail. 

Q. I understand you to say that the total quantity was made up from the 
jpaiate pieces being measured, and not from the average of the whole ? — Mr. Marcus 
nith and myself struck an uvt^'ago area of 1^4 foot before the work was let, and it 
irns out to be ItO feet now. If 1 remember aright, 1^4 feet was the estimate on 
hich the work was let. 

Q Which is most to be relied upon, the traced plan, or the section upon which 
)u have marked the length of thecrib-wharfing atthe two places mentioned, as they 
) not agree ; which should I take? — I think the traced plan should be taken as 
►rrect, for these were for my own information ; then the statement I put in figures 
as from my own actual measurements. 

Q. From whence came the stone that that crib wharfing and rip-rap were filled 
ith ? — Mostly from rock cuttings, with the exception, in which case the principal 
irt of it was taken from the bottom of the river. It was very difficult to get out of 
e gravel anywhere within a mile. 

Q. Could you arrive at the proportion of it that came from the rock cuttings? 
•Ono-third of the aggregate of the rip rap and crib-wharfing did not come from the 
►ck cuttings ; it came from the bed of the river and elsewhere. 

Q. Did all the earth and all the nnjk that were in the cuttings go into the em- 
mkinen':, or was there a part of the rock that did not go into the crib wharfing and 
p-rap ? — Every available piece was put into the rip- rap and taken care of. 

Q. I want to know if any of the earth was wasted or spoiled ?— Yes; in one or 
70 cases there was a large quantity spoiled. 

Q. Where ? — There was one at Carris Brook, where a large quantity was 
►oiled. 

Q. There was some quicksand spoiled ; was there not? — Yes; that was the other 
ace. 

Q. You did not put the quicksand into the embankment ? — No, there was con- 
ierable of spoiled bank there. 

Q. Could you give me the quantity that was spoiled in those two places? — ^I 
ink it is in the return. Exhibit B, F. Alter examining the return, I find it is not 
it. 

Q. In making out the quantity of excavation you paid for, you should take into 
count what was wasted ? — We had t3 waste that, because it was beyond theregula- 
m haul of 1,600 feet, and we could not ask the contractors to take that and use it 
r the purpose of embankment; the upper cut was always intended to be wasted. 

Q. \Yhat do you call "the upper cut? ' — Carris Bi'ook. 

51 
42 2— 4i 



42 Victoria, Sessional Papers (No. 42.) A- 1879 



Q. But the quickBand was not intended to be wasted? — No. 
Q. 1 want to know if, in making -ip the quantities, you made allowance fbr that?^ 
Yes ; in the sand cut at Station 144 there was spoiled 6,090 yards. 

Q. Was there any other place wheje earth was spoiled? — No; just two places. 
Q. What is the other place ? — Carres Brook. 

Q. Could you not tell the quantity spoiled then ? — There mu>;t have been over 
5,000 yards— just as much as there was in the other one. 

Q. Was there any rock spoiled ? — No ; it was all put into the bank. There wa» 
one place at the bridge it was taken across the river in the winter on the ice. 

Q. In the original bills of works there is a certain percentage allowed for shrink- 
age ; did you allow the same percentage in the revised bill ? — Yes ; and made it up oii 
the same form in the balance total sheet. It was the only way we could arrive at 
the amount spoiled. 

Q. You have not got that balance-sheet ; have you ? — It should be amongst the 
returns. 

Q. Your Exhibit " B F " onlj'- gives the results ; it does not give the calculations? 
— No ; thej'' were taken good care of and sent hero, whatever has become of them. I 
tried hard to get them at the former tiial, but failed to do so. 

Q. Could you, from that section of the completed work, show the gross quanti- 
ties of cuts and fills in each place? — Yes; they are all marked. , 

Q. Exhibit eight is the calculations corresponding with the finished section ?— 
These sections correspond with the original levels and were made after the alteration* 
were made. 

Q. These also show the places whore there was crib-wharfing; do they not?— 
Yes. 

(^. Have you got the areas of the embankments and cuttings as they are marked 
here ? — They ought to be in detail in the office. The pencil line on Exhibit eight is 
not my own work; it was drawn by Mr. Bell or Sohreiber as the assumed boundary 
of crib-work. The test-pit at Station 515 is erroneous ; instead of all being earth, about 
halfway down was rock. 

Q. Can you tell me if your calculations were made on the assumption of those 
sections? — Only the ilrst one; the revised quantities were made on actual measure- 
ments. 

Q. What proportion of the stone that went to form the rip-rap and crib-wharting 
was taken out of the bed of the river?— About one-third was taken out of the bed of 
the river and two-thirds ol it came from the rock excavation. 

Q. Do you know anything about Mr. Odell's miscellaneous works that he 
returns ; I have the statement here ? — I do ; from hearsay only. 

Q. I see, from his return, excavations on the river bank, 148 yards ; excavation, 
road crossing inlets to culverts, 560 yards ; back for road crossing, 560 yards. Look 
at those quantities. I want to know what was done with that material ; did it go 
into the embankments? — I think the most of it was used in making farm crossings. 

Q. They did not go to form embankments, then ? — No ; not in that case. 

Q. Then, there is a borrow-pit (ditch-right) 900 yards; there is no occasion to 
deduct that from the embankment ?— No. 

Q. Then, here is another, 1,390 yards, at the hill opposite Station 356 ? — That was 
made a borrow-pit of and put into the embankment. 

Q. At Station 371, 1 see there are 1,219 yards ; what became of that ? — The two 
quantities at Stations 356 and 371 went into the embankment. The first was 1,390 
yards, and the second was 1,219 yards. 

Q. ** Twelve hund;'ed feet alongside ditch-right ; " what became of the material 
that came out of that? — That is the catch- water drain. '4)^kM^ 

Q. "Widening bank from Stations 269 to 278 ; " it gives two quantities of 1,204 
and 1,200 yards. He says that is widening the bank. If the bank is made so much 
wider you ought to know it ? — That was done before the change of location was made,^ 
and then the embankment was not in the proper place, and it was just the same a* 
wasted. 

52 



42 Victona. Sessiona^: Papers (No.42 ) A. 1S79 



Q. Is it change of line or change of grade? — ^It was change of line ; there was 
310 change of grade. The material borrowed at Stations 2 19 and 228, 130 yards of 
rock and 793 yards of earth, all went into the embankment. 

Q. Here is another borrow-ditch to the right at Stations 240 and 247 ? — That 
Tvent into the embankment also; 20 of rock and 919 of earth. 

Q. In the claimants bill, item number six, he claims between Stations 76 and 125 
to be paid two dollars a yard for the rock there ; is there any reason why he should 
be paid anything extra there? — Yes; I would think so, because there was no rock at 
all before, and to avoid the river we drove into a very hard, zig-zag kind of rock, 
and Mr. Fleming intended to give him something more for it. 

Q. Do you think the price he puts in here a fair one ?--I think it is ; I would not 
like to do it frn* the money. 

Q. We come, next, to item number seven, from Station 509 to 520 ; there are 960 
j-ards of rock cutting at four dollars a yard ; was that change of grade? — I am not 
prepared to say that rock was taken out; the change was so trifling that it was not 
taken out, to the best of my knowledge; it was so trifling that it did not alter the 
level of the cattle-guard, to the bent of my recollection. 

Q. It is distinctly testified to by the contractors, that it was first finished upon 
-one line and then it was sunk deeper on another; there evidently was a change of 
^rade there? — Yes; but it did not affect the cutting ; it was not considered by me 
necessary to take out that level. 

By Mr. Mitchell, 

Q. You remember the cattle-guard ? — Yes. 

Q. Do you remember we had timber left after the building of that cattle-guard 
that was not required, and that cattle-guard is not as deep as the rest by eighteen 
inches or two feet ? — I cannot say it is ; I remember the cattle-guard is not as deep as 
the others, because it is in rock ; I do not know when that bottom could have been 
taken out unless it was when I went to Scotland for a couple of months. 

Q. If the bottom was not taken out there, there would be only eighteen inches of 
gravel in the cut ? — We put in extra gravel in all the cuts ; Mr. Fleming wanted it 
done. 

Q. That would be how much ? — One foot ; and the same over in the other cut. 

(2. You do not remember their going over it again to grade it to the new line? 
— 1 do not. 

Q. If 3''ou remember, you were engaged at McGreevy's a great deal of the time, 
and you were not there only once in a great while ? — It is possible, but it is not 
probable ; I never made any return for that, 1 am sure. 

By the Arbitrator : — 

Q. Then, with regard to that item (number seven), you think the contractor has 
no claim ? — No ; not that 1 am aware of. 

Q. See item eight, from Station 453 to Station 455 ? — That is the New Brunswick 
Tock cut. 

Q. There is a change of grade there ? — Yes ; there was a slight change there. 

Q. Was it finished to the first grade and then altered to the second ? — Yes. 

Q. That was taking up the bottom ? — Yes ; we lowered the bridge a foot, but it 
-was a great saving to the bridge and on the embankment on the other shore. 

Q. They charge four dollars a yard for that : what do you think of the price ? — 
It is very expensive taking up bottom, but I suppose that is j*ather stiff; it would be 
;as easy taking out three feet as one foot. 

Q. Have you any way of getting at the quantity; they charge for 1,528 yards: 
Low many yards do you suppose it to be ? — It would not be over 350 yards that we 
afl[ected by that change. It was only one foot at the bridge, and we got clear of it as 
£00n as possible. We rose about three inches to the foot, and four hundred feet 
would run it out. 

53 



42 Victoria. Sessional PftpefM (No 42.) A- 187» 



Q. I observe, with regard to jour revised bill of works for the^final estimate, that 
you returned 35 acres of clearing and close cutting" ; the contractor claim only 23 
and IJ acre for grubbing: can you explain that item ? — We got special orders irom 
Mr. Fleming, to avoid the trouble of charging for grubbing, to average each acre 
for grubbing as equal to eight acres for clearing. 

Q. Then the original bill of works agrees with the contractors' claim? — ^Yes; 
the contractors were only really paid for whatever their clearing was ; they got 
eight times the price for grubbing. 

Q. So that the actual quantities agree with the bill of works ? — Yes. 

And the further examination of the said witness is postponed till to-morrow at 
11 a.m. 



Ottawa, 20th February, 1879. 
Evidence of Mr. Peter Grant continued. 
Counsel for both parties being present at the examination. 

S. Keefsr. 

On this 20th day of February, 1879, reappeared the said witness, whose examin- 
ation was continued, as follows : — 

Q. For that place at Marru's Hotel, I see you have returned 129,000 yaixis io ' 
the revised bill, and there were only, 65,300 yards in the original — that is of earth, 
whereas the rock is 2,170 yards in the revised bill, and 4,690 in the original. Was- 
that increase due to the change of line ? — Yes. 

Q. And that comprehended all the work done by the washing operation by the 
sluice? — It did not comprehend exactly all that was done ; they did too much, butt 
could not give any return for it. 

Q. Did they excavate beyond your line ? — Yes ; but I did not change my figure* 
at all ; I did not see that I was justified in changing them. 

Q. But the contractors did more woi*k than was allowed to them ? — ^Yes. 

Q. I want to know how you made up that 2l),000 yards ? — We made new cross 
sections. 

Q. Where are your calculations ?- -I cannot account for them, but they are inter- 
leaved with the others. 

Q. Did you make a bill of the alterations to conwspond with the original bill of 
works?— Yes ; upon the same principle exactly, and in the same form. 

Q. And these quantities are the results? — They were not correct, as I did not 
think I was justified in shifting it. 

Q. The point I want to got at is this : The line was changed there, you all admits 
and it increased the quantity of excavation, and you had made a measurement, com- 
prehending the alterations as well as everything. I« that calculation, as given here 
m the revised bill of works, correct? — No ; it is not correct ; I did not shift it because 
the poor fellow suffered enough without it, and I did not think I was justified ift 
shifting it. 

Q. Did you give them all they did ? — Yes ; I left the original calculation ; I never 
touched the revised calculation. 

Q. But the revised plan is your own ? — Yes ; but it was not carried out accord- 
ing to that; it washed down so much that I had to shift the line further out; it 
would have ruined the whole gra le if I had insisted upon the projected alteration 
being carried out. Where there was 20 feet of embankment, I found 20 feet of cut- 
ting. It was such magnificent proportions that came down from the mountain above^ 
that I could not say that I would be justified in exacting my original idea, so I putm 
a compound curve nearer to the river, and the contractor was never called upon to 
carry it out on the original plan. 

Q. You considered it right, then, that'^those quantities should stand, although th» 
work done was less than that? — I never altered the quantities; I never touched a 
jfigure from the original quantities of the projected line. 

54 



42 Victoria. ^ Sessional Papers (No. 42.) A. ]871> 



Q. Although you shifted the line, you did not change the quantities ? —No; any 
ODo who would put an instrument on the line would find that out. The water washed 
the stuff down in such extraordinary quantities that where we had 2U feet of fillings 
we afterwards found 20 feet of cutting. 

Q. From this material that was washed down you made the embankments as far 
as the haul would allow you to make it (>n either end ? — Yes. 

Q. And the balance was wasted? — ^You could hardly call it wasted in that case, 
for it went where it liked. 

Q. It did not enter into the construction of the embankment at any rate ? — No., 
Q. Only that part of it which would make the 800 feet over-haul ? — We did not 
take anything beyond the 1,600 feet, extreme haul. 

Q. The next item is number nine, ** under drains." I see that the contractors 
charge for 1,346 lineal feet of under-drains. The original bill of works contemp- 
Ijated 2,000 feet, and you had returned 1,100 feet, as uctually done. Will you tell me 
what is the nature of those under-drains ; are they drains in line of the railway, or 
under slopes ? — They are under embankment ; we have no other unvler-drains there^ 
Q. Instead of putting in a culvert you put in an under-drain ? — They were con- 
Btructed of stones and sticks. 

Q. What you would call a trench-drain formed of stones on top ? — Yes ; they^ 
were formed of three poles filled in with loose stone. 

Q. Can you account for the difference of 340 feet between yourself and the bill 
of works ? — I can. I could not put in a drain, except when it was needed. It was a 
gravelly country, and kll the drains were not required. It was my mistake at first^ 
as I put mem in at a gu.?ss only. 

Q. Tiiore was not more than 1,100 feet done altogether ? — No ; not ayavd —not a 
foot more. The}'^ were all measured one by one. It did not necessarily follow, be- 
[ cause they were in the printed form that they were constructed, because I only put 
Ihem in where they were neces^ar}'. 

Q. I do not see in this bill of quantities any return for catch- water drains. Were 
there no catch-water drains made ? — Yes, a great many ; I think they are entered at 
the bottom of the earth quantities of item No. 10. 

Q. I see you have returned the catch-watc- drained in cubic yards? — Yes; that 
was Mr. Flemings's instruction. Those catch -^vater drains weic done according ta 
specitication. There was about a cubic yard to the running yard j but we never 
made any such calculations as they were very troublesome. 

Q Mr. O J ell retui-ns 12,1 Id feet of lineal drains? — We let the contractors off 
easy on that, as they did their work well, and we left them the original quantity. 

Q. I see, also, the sum of 5,450 yards of excavation, road diversion; where is that 
diversion ? — It is near the crib-wharfing from Station 300 to 320. 

Q. It is put in as special work, and it is not in the original ? — It is in the special 
work in the original ; but we saved on that. 

Q. Now we come to this question of rip-rap. I tind a great deal of differenco 
between the rip-rap you have returned and the rip-rap returned by Mi*. Odell ; 
items Nos. 11 and 12. Altogether, Mr. Odell finds 11,978 yards, and you have only 
returned 3,400 yards ; but I observe that you have stated in your evidence before the 
Court that you omitted some portions. You state that the rip-iap at Station 374,^ 
Clark 'ft Brook, and at Station I'Jl, Gilmor's Bridge, were never returned? — No; it 
was a mistake. 

Q, Can you give any idea of the quantity? — It would not be much trouble to 
give the quantity, but I think the greatest difference between what Mr. Odell gave 
and what I guess, arises from the fact that he must have measured on Frazer's lower 
flat, and entered it in the printed plan, that it had to be carried across in the winter. 
Q. The extra width in the base of the embankment across Frazer's lower flat was 
not meaanred as rip-rap ? — No. 

Q. Was it measured as embankment ? — Yes; we put the fence upon this three 
feet of '* firm " on both sides to be out of the way of the flood. 
Q. And it is accounted for in the excavation ? — Yes. 

55 



42 Victoria. Sessional Papers (No. 42.) A^ 1879 



Q. Could you tell me at your leisure, to-morrow, what is the quantity you have 
omitted? — It was omitted in copying the papers out ; that's all. It was a heavy piece 
of rip-riip, too ; it was one of the heaviest places we had. j 

Q. Next comes '' first class masonry," item No. 15. I find in your evidence that 
you admit that all the culverts and bridges that you did were done by the contractor 
in first-class masonry, with the exception of foMV culverts that were built dry ?--I 
am quite prepared to admit that. 

Q. Could you give the quantity that was in those four culverts that were built 
dry, second-class masonry? — I am afraid I could not, uuless I have it amongst the 
papers. 

Q. Could you mark on the plan where those four dry culverts were ? — Yes ; at 
Station 507 x 40 there is 68 yards of dry masonry; at Station 307 there is 49 yards; 
at Station 310 there is 45 yards, and at Station 367 there is 41 yards of dry m-jsonry. 
Q. That comprises all the dry masonry ? — Yes. 

Q. The next item, No. 16, " paving" feOO yards in the original bill of works, and 
you have returned only 300 yards as having been done. This paving is the paving 
of the water course under the culverts ? — It includes a little more ; a piece of dry 
masonry at either end. 

Q. What is the nature of it; is it stone set on edge or laid flat? — It is 
both ways. Where there was necessity for it, we made it very good, and where there 
was not we did not pay much attention to it. 

Q. I see you have retuined it at five dollars a yard, whereas the contractor 
charged only two dollars a yard for it ? — It was worth it ; we had to put in the paving 
well because the streams came down from the mountains with such a rush that unless 
they were put in solidly they would not stand, and we made the contractors toe the 
mark and put in good work. 

Q. The next item. No. 17, "concrete." In the original bill of works there were 
1,400 yards of concrete at four dollars, and in the revised bill there are only 50 yards 
at seven dollars. I suppose that difference is due to the fact that the Restigouche 
bridge was taken out of it? — The foundations, as a rule, were remarkably, good, and 
the contract was entirely unnecessary except in one case where it had to be used, and 
il cost all of seven dollars ; that was my own figure. 

Q. Was fifty yards all that was required ? — Certainly. 

Q. Do you consider seven dollars a fair price ? — I put that in from the actual 
cost. 

Q. Leaving no profit whatever to the contractor? — Not a cent. 
Q. The next item is No. 18, '^ earth excavations in foundations 4,715 yards atone 
dollar a yard." What foundation can that be tor? — Culverts and bridges ; mostly 
culverts, I think. 

Q. Does that include ttie Eestigouche Bi-idge? — No. 

Q. You have returned no quantity, but have allowed one thousand dollars for it, 
whereas the contractors claim 4,715 yards ? — That is all for culverts and little bridges; 
everything is there except the Kestigouche Bridge. 

Q. Have you any measurement of the earth in the foundations in any of those 
culvcru ? — Ye-. ; with tlio oxoepLion of the western abutment, we have them all, 
item afior ileiu. whatever becamo of them, i took a week to try and find them. 

Q. Could yoa possibly make out for nie the total excavation for those culverts? 
— Not unless you have the papers for me. 

Q. The next item is No. VJ, "rock excavation of the same SOO yards?" — ^That 
is for the three culverts at Macdonald's, crib-wliarfing from Station 300 to 320. 
They were all stepped up to receive the masonry. 

Q. Do you know that the $750 charged would have done that work, or is it too 
much or too little ? — There were six culverts altogether founded on sliding rock that 
had to be stepped for the masonry. 

Q. That would be at the rate of $120 for each culvert ? — I do not think the claim is 
extravagant, because they had to pump at those culverts, in consequence of water; 
I know the one at Clark's Brook cost one-half of it. 

56 



2 Victoria. Sesj^ional Papers (No 42) A. 1879 



Q. The next is item 20, ** pine timber, in beam culverts, 400 feet." The con- 
actors charge $200 for that. You have allowed 224 feet at four dollars, $8'J6. Is 
at claim additional to the contract ? — It is our schedule of prices ; ray return is 
agle-handed; that means two dollars a foot, for it includes the two beams. 

Q. How does it come then instead of there being only 20 feet of culverts, as 
larged in the bill of works, there are 224 feet ? — It is a special contract for a bridge 
jyond the range of culverts, and it was afterwards built of iron. 

Q. In the original bill of works there were 80 lineal feet of open culverts? — ^Yes. 

Q. But in lieu of that, you have 224 feet? — 1 think that takes in the two beams. 
:is measured in the line of the railway actual measurement. 

Q. Can it be verified now ? — Certainly; any day. 

Q. Does it include the cattle-guards? — It does. 

Q. You have returned those at four dollars for a double beam ? — Yes; they cost 
boat that at any rate. 

Q. In your estimate here, in the abstract form, I see you have returned, besides 
irra crossings, five crossings at $25 each, $125 ? — That was an arbitrary price. It 
^as marked for me to do, and I do not know whether it was right or not. In the 
riginal bill of works there were ten farm crossings and we only built ^vq. 

Q What do you mean by an arbitrary price ? — It was laid down to me by Mr. 
'leming. In the case of the farm crossings they range from $25 to $125 each ; 
«rhaps the charge is not right. 

Q. We now come to the 2l8t item, " broad diversion at Station 4{>0" ?— I think 
hat has alrer.dy been allowed and paid for by the Government. 

Quebec, Montreal, Ottawa and Occidental Kail way, 

Western Division, Engineering Department, 

Hull, 5th February, 1S78. 

Dear Sir,— I find that from 479 X 50 to 48(i X 50 (Eraser's lower flat) that 
bout 21, OoO cubic yards of the embankment was tilled with the soft and inferior 
laterial from the lower borrow pit near the west abutment of Hostigoucho bridge. 

From 4w9 tc 494 X 50, the 3 feet beam to carry fence over freshet level amounts 
► 1,-00 cubic yards, and from 497 to 500, for the same reasou and to protect cnibank- 
ent 300 cubic yards (I think this was allowed). At G-ilmor's brook,probably 200 cubic 
irds was allowed ; I do not recollect. At Clark's brook, upper end of contract, 500 
ibic yards was intended to be allowed, but I fear it was omitted in my linal state- 
ent. Of course, had I known that the contract was to be dealt with a:^ a schedule 
tntract, my detail notes would have buen more carefully kept aad recorded, but aa 
is they are wonderfully lull, not\vlth^itanding the amount of them that have got 
ixed up with the papers of other contracts. I rescued any amount from the papers 
' Section No. 3 one day I chanced to notice them in the wrong box. 

Very respect f ally your.-j, 

(Signed) PETEli GllANT, C.B. 

P.S. — Living in another Province, as I do, I have been at some expense for 
ncheon, di-iving, &c.; 1 tihoula get five day&' allowance. — P.G. 
Keefer, Esq., C.E. 



Q. In what way? — They first took our quantities and figures, and they were 
lid for the work. 

Q. Is it an extra ? — It was extra, and was allowed for. 

Q. There is another one at from Station 320 to 299 ; is that also of the same 
iture? — jSTo; that was in the original contract. The preliminary quantities in the 
•iginal bill of works were entirely erroneous and wo had to give them the proper 
lantities alter. 

57 



42 Victoria. Sessional Papers (No. 42.) A. 18W 



Q. In the original bill of works I find 2,400 feet for the spans of two bridges— 
40 feet spans : were they built? — No\ they were built by the Knglish company. 

Q. Would it appear to you in view of the extra work on the masonry in pre- 
paring it to receive the iron superstructure that it would be reasonable to deauct 
$1,200 from the contract instead of $2,400 as inserted in the original bill of works, 
and as Mr. Schreiber and Mr. Brydges have assumed. The contractors state that in 
consequence of the extra work thrown upon the masonary to prepare it for receiving 
the plate girders the work was made more expensive than it would otherwise have 
been? — Certainly the abutments were of wider dimensions, and I must confess that 
under the circumstances they would have made a certain amount of profit out of the 
wooden bridges, because they were in a lumber country. 

Q. That is not exactly the point. Do you think it would be reasonable to deduct 
$1,200 from the contract because of those two bridges being made of iron instead of 
wood? — I think it would be too much. There was a large extra on Gil mor's Brook for 
cutting down the masonry from hammer-dressed to chisel-dressed ma&onry. 

Q. How much would bereaaonable to deduct in consequence of the change?— 
About one-half of that would be enough. I know they spent three or four hundred 
dollais at Gilmor's Brook before they got it so that the iron would go in at all. Bot 
they were all changing for loss of profit, and I don't know whether that would enter 
into your considerations at all. 

Q The question simply arises whether in doing that work it is an equivalent to 
the work they put upon the masonry ? — No. 

Q. Then the work that they had done would not entitle us to deduct more than 
half of the $1,200 ? — No; not more than half that wouldcover it on both bridges- 
at Clark's Brook and Gilmor's Brook. 

Q. You mean to say that should be deducted in each case ? — Yes,'^to the best of 
mj knowledge. 

By Mr. Mitchell : — 

Q. Do you think that $150 on each of those abutments would pay me for the 
difference in the work required by the old plan an;! the change to the iron supei;- 
fitructure? — It would be more than enouc:h at Clark's Brook, and less than enough at 
Gilmor's Brook. One was a through bridge and the other was an over bridge. 

Q. At Gilmor's Brook you think $:^0v) would be enough on each of the abut- 
ments ? — I liiink $.iOO would be enough for the pair. 

Q. Then at Chirk'8 Brook how far would $150 go just for hauling the stone from 
Bathurst up? — I can't say. 

By the Arbitrator : — 

Q. Dici I'ley have to piocure special stone for this work? — Yes; the stone in that 
neigh borh'od wan of Huch a nature that to cut it down in that shape was impossible^ 
and they had to go an extraordinary distance for freestone so that it could be cut 
down. 

Q. That was an additional expense in ihe masonry n co>isequence of the 
change ? — Yes. 

Q. What would bo the difference in the cost? — It would be difficult to estimate; 
the cont was frightful. 

By Mr, Mitchell : — 
Q. How far would $150 go towards baulin«^ this stone fourteen miles, without 
the co.st of freight being added ? — E did not enter into that question at all ; I only 
calculated the cost of dressing them down. 

By the Plaintiffs Counsel: — 
Q. In consideration of those facts, would you not think it leasonahle to mako» 
greater reduction? — No; I don't think ho.; 

Q Tf one-half was taken into your calculation for dressing the stoT^e, how raucb 
more should be allowed, inasmuch as the contractors have shown they had to draw 
the stone so far? — T would not alter the figure?, beenuse the contractors brought th^ 
etone for their own particular advantage as it was easier dressed. 

58 



42 Victoria. Sosnional Pnjwrf. (No 42,) A- 1875^ 



Q. You have shown that it was almost, impossible to dress the stone in th 
vicinity? — It could have been done, but it would have cost a great deal. 

Q. When it was worth one-half for the dressing of it, how much more must it 
bave been worth to bring the stone such a distance. Item No. 23 — " Blasting and 
removing rock from Stations 453 to 465, 12,118 yards " — Was that the tusk of rock 
referred to in some of the evidence ? — I was anxious that it should be started in that 
svay, because it was a very heavy cutting, and it allowed the work to be commenced 
CD the centre of the cut as well as at both ends. They had to do a great deal in that 
fray before they got into the excavation proper; they were paid for the rock by 
myself without any order from anybody, and they were paid as well by the cubic 
yard, with the idea tliat it would afterwards be deducted from the contractors. 

Q. Was not this work outside of the contract, and outside of the line of rail- 
way ?— Yes; they worked thirty or i'orty feet before they got into the cut at all ; 
the result was that the contractors got no estimate at all that month. 

Q. You estimated the railway to the required dimensions ? — We commenced 
outside of the railway. 

Q. Why did you commence outside of the railway? — Because it was in the 
middle of the cut. 

Q. How much did you take out ; did you take out 6.900 yards outside of the 
line of railway ? — Yes; it was oidered to be all taken out, but it was found cheaper 
to put in snow-sheds than to take out the rook. 

Q. Was the snow-shod built? — No ; not at that time; it was not thought of 

Q. How did you make out this 6,900 yaixls ; was it from actual measurement ? — 
Yes. 

Q. Do you consider one dollar a cubic yard a fair price fot it? — It was about 
the easiest rock I saw the contractors handle. 

Q. What kind of rock was it ?— Loose slate. 

Q. Had it to be removed by blasting or by a pick — First by pick and afteivvards 
by blasting ; I think one dollar per yard would be fair for it, because I think it 
allowed them to cany on their work in a better manner than they otherwise would 
have done. 

By Mr. O'Boherty:— 

Q. Would you not think 81.25 per yard would be reasonable enonsrh. bearing: in 
mind the high prices at thojse times ? — 1 know that piicos were hi<^h then ; the men 
"Were paid seven shillings a day, and it was a most extraordinary time to do work. 

Q. Under those circumstances, would you not think $1.25 would be a loason- 
able price? — I think it would cost that, because flour was $11 a ban-el, hay $25 per 
ton, and oats 80 cents per bushel ; it was a frightful time to do work. 

Q. Every thin^r else was in proportion, I suppose ? — No ; these were the most 
exaggerated things , 

Q. But powder, steel, and other railway supplies were higher then than they 
are'now ? — Yes; they were more than double what they are to-day. 

By the Arbitrator : — 

Q. I observe that you have returned some work done in thin Diorite quaiiy , and that 
you have made an estimate of the amount of work done by the contractoi-s under the 
fcection of the Engineers in that quarry ; do you suppose that comprehended all tho 
^ork that was done in the Diorite quarry ? — Yes ; but I did not have tiie actual 
figni^es. I had the check time of the contractors' men, and the blacksmiths, and I 
Blade it up from this. 

Q. The contractors have added on four years' interest; I would ask tho counsel 
fop the rirown if the Crown pays interest in such cases? 

(Mr. Mclntyre. — If the moneys were due, and all the conditions were performed 
'^ entitle the parties to receive the money, I think the Crown would h.nvo been. 
J'egponsible.) 

59 



42 Victoria. Sessional Pai)ers (No42,} A. 187( 



Q. I 8iij)poso, Mr. Grant, that bill was made up just as accui*ate as it possibly 
could be; did it comproheiid all that you considered the contractors entitled to for 
the work at the JJiorito quarry? — It did not include any hindrance; it was the 
actual cost. 

Q. That did not include the second item for drawing it away? — No. 

Q. Is the allegation correct that after the stone was quarried and condemned, it 
was drawn away to be used and then condemned again ? — I think not; it was con- 
demned because it was desperately hard to dress. 

Q. Why was it diawii awaj' if it was condemned ? — The best of it was drawn 
away and built. 

Q. But it is stated here that it was all wasted ? — No; there was some of it built 

By Mr. MitcheU: — 

Q I suppose you will admit that the stone was cut at the quarry? — Yes, 

Q. Aud we hauled this stone on to the work the following winter, did we not?— 
Yes. 

Q. Do you know of more than one stone from that Diorite quarry having been 
put into the work? — I think mostly all that were taken down were put in. 

Q. No ; there was only one stone ?— What was that stone put into ? 

Q. I put it in, and got three or four courses built on the top of it before it was 
detected. It was ordered out but I did not take it out, ana it is there yet. 

By the Arbitrator : — 

Q. Do 3^ou think any of the stone was used in the works ? — I would not go as 
far as M.r. Mitchell goe", for I think all the stones that were cut were used in the 
<3ulverts. 

Q. You are not sure, though ? — No ; I am not sure, but I think they were all 
built that were cut, though there were a great many brought down at considerable 
-cost that were not built. 

(J. Have you any means of checking the account sent in by the contractors for 
drawing those stones down ? — I have no means now, but most of the figures could be 
checked by the contractor's man, Charles Archibald. lie was kind enough to show 
me his books, and we did not disagree to the extent of fifty dollars. I 

Q. That is for the work in the quarry ? — Yes. | 

Q. As to the work of hauling it away; you have no trace of it ? — No; I never 
took any account of it at all. 

Q. The next item is No, 25 : ^- Paid Fraser for borrow-pit at MitchelPs house, 
^200 " ? — I was cognizant ot that bargain ; I was present when it was agreed to. 

Q. Was it not part of their bargain to furnish right of way ? — It was not rigbl 
of way; it was a borrow-pit outside of the line. 

Q. Was not the Government obliged to supply borrow-pits? — ^They thought not, 
although I always thought they were. 

Q. They did get a borrow-pit at last? — They did. 

Q The next item is No. 26 : " Labor on station ground opposite No. 506, $92 ? "— 
That is allowed ; it was work actual Iv performed. 

Q. The next item is No. 27 : The contractor claims 20,993 yards, at 20cte, 
$4,198.60. You have allowed 15,000 of overhaul, at 7cts., $1050.; is that correct?— 
Yes, 

Q. Was that quantity overhauled measured in embankment or measured in tbe 
borrow-pit ? W^as it the actual measurement of the stutf that was transported or was 
it the measurement of the bank after it was taken there ? — It was measured in the 
borrow-pit. 

ij. ii' measui ed in the borrow-pit, there was no necessity for adding any pe*"' 
centage for subsidence ? — No. 

Q. Now, as to price. The price they charge is 20cts. a cubic yard ; what was 
the distance that was overhauled ? — It was, I suppose, overhauled over one-half more 
than the contract allowed. 

69 



2 Victovm. Sessional Papers (No. 42.) A. 1879' 



Q. You would have a right to call on them to haul it 1,600 feet? — Ves ; lor all be- 
nd 1,600 I gave them iseven cents. 

Q. Would seven cents pay for carting that 1 ,600 feet ? -I could not tay that it would, 
t it was the usual allowance, and I could not go beyond it. I thought Mr. Fleming 
3uld change the figures after he carae to Ottawa. I did not consider that any 
jure I would make in that way would have been binding on Mr. Fleming or anyone 

36. 

Q. What would be the fair value of that overhauling? — I would not say that 
ven cents would be enough under the circumstances. 

Q. How much would be enough ; he charges twenty cents ; should he be allowed 
ilf that ? — I know that it could be done, under ordinary circumstances, for that, but 
su])pose it would cost twelve, at least, under the ci?-cumstances at that time. Still I 
msider seven cents was a large allowance to make. I always thought we would get 
lat borrow-pit earlier than we did. The minute we got the borrow-pit the overhaul 
as stopped altogether, because we got it within three hundred feet of the spot. It 
as getting to such an extent that they would have had to stop work, as it would 
)8t fifty cents a yard to haul. 

By Mr. Mitchell: — 

Q. I made up my embankment by hauling 1,600 feet? — Yes. 

Q. After that I was entitled to a bonow-pit, and I applied to you and your 
iperior officer and the Commissioners, but could get none ? — No ; you did not get it 
, the time you wanted it. 

Q. When I went to work and hauled that stuff to make the embankment when 
)u refused to give me the borrow-pit, you said you would not gratify Mr. Frazei* to 
ve him such an exorbitant price, and I started an overhaul and hauled that stuff 
neteen hundred or two thousand feet. Then you say all that you are liable Ibi-that 
iTO thousand feet is seven cents a yard ? — You might easily have got that borrow-pit 
an earlier date. The contract says you should go beyond the 1,600 leet, and I 
m't think it was fair that you should have been kept out of a borrow-pit for over 
^elve months when there was one within 300 feet of the line. 

By Mr, O'DoJwrfy ;— 

Q. Since you have been allowing a cent a yard per hundred feet where prices 
e a» they are at present, how much more should you allow when prices were what 
ley were then ? — It is a very ordinary price — a cent a yard. 

Q. But you have told us that prices were double and treble what they aie now, 
id should you not allow us double or treble for the work done at that time ? — I 
link a half more — :say 12 or 12J cents — would be sufficient. Seven cents would not 
) a binding price upon Mr. Fleming or anyone elise when I made it. 

Q. But you are now allowing a cent when everything is cheap; should you not 
low two or three when prices were so much higher? — No. 

By Mr, Mitchell : — 
Q. If you had been able to procure me a bonow-pit at that point at that time, 
)n't you think I would be in a better position than getting twenty cents a yard for 
le overhaul ? — Certainly ; I think if you had got the borrow pit you would have 
Lved ten cents a yard. My opinion is, you ought to have twelve cents instead of 
>ven. 

By the Arbitrator : — 

Q. Item 28: "To piling protection to Fraser's Flat and embankment. Station 
B5 " ? — That has all been settled and admitted in detail. 

Q. The claimant claims {57,S25.85 for that and you have allowed $6,472 ? — I 
ould not allow a cent on that, because [ have given it most minute attention. 

Q. Calculate how much 6,000 yards would be at 30 cents a yard ? — It must bo a 
listake. It is evidently a clerical en*or, as it should have been 600 yards instead of 
000. The proper money figure is there — $180. I think the prices in item 28 are 

61 



42 Victoruk Sessional Papers (No.42) A. 187» 

inadequate, and I never expected that they would be carried out. I should say that 
the timber was worth $40 a thousand in the work when you could buy it for $30. 
The C08t price of square timber there is $15 a thousand, board measure, no matter 
what kind of a stick you can buy ; the small stick you can buy at ten to twenty 
cents a running foot. 

By Mr. Mitchell : — 

Q. You have had considerable experience in piling ? — Yes. 

Q. Do you remember what price you paid Martin Murphy for his piling in the 
Restigouche River? — Seventy-five cent^. 

Q. That was in the same locality where my piling was done ? — ^Yes; only it was 
a diftererit kind of piling. 

Q. What is the general price for piling in your practice; what have you paid 
for piling in any works you have done? — Thirty cents a foot. 

Q. irt that in the old country or here ? — In both. I think Martin Murphy's price 
was tsimply ridiculous, bat we could not help it ; it was his own contract price. 

Q. Was it not a private bargain with Mr. Fleming? — I have no idea how it 
happened ; but it wa^ a ridiculous price to pay. 

By the Arbitrator : — 

Q. Was it not a more difficult work to do than Mr. Mitchell's ? — Mitcheirs was 
much less difficult. 

By Mr, O'Doherty :— 

Q. That would bo about the price you would pay now if you were doing the 
work at present? — I think so; most of the offers I see going ia now are something 
about that. 

Q. That is at the present time, you mean ? — Yes. 

Q. Then you must take into consideration the difference of time and the differ- 
ence of prices ? — These prices are not binding ; I think the work could be done for 
twenty-five per cent, less now than it could have been done then. 

Q. Do you not know that tenders are going in at 50 per cent, less now than they 
were then ? — I know there is an enormous reduction. 

Q. Therefore, much more should be allowed down there at those times than 
should be allowed now ? — Every one would have made money if it had not been for 
the enormous price of labor. 

Q. The contractors could not keep it therefore ; it cost them more than it would 
now : ten cents a foot more would not be too much ? — I do not know ; it would 
depend upon how many feet they could drive in a day. Ten cents would make a 
great difference. 

Q. What is worth 20 cents to-day would not be over charged at 40 cents at the 
time this work was done ? — I don't know ; it would make a terrible difference. 

By Mr Mitchell : — 

Q. Do you not consider Mr. Fleming a very honorable and straightforward man ? 
—I do. . 

Q. Do you not think Mr. Fleming would have allowed me 50 cents for that 
piling ? — It would have depended upon whether you were a good boy or not. 

By the Arbitrator : — 

Q. Item 29 : -^Koad diversion at 114, &c." — Exhibit A Z. I gave my estimate of 
the value of that road : excavation, 900 yards at $1.25, $1,125 ; earth excavation, 100 
yards at 30 cents, $30. 

Q. You think that the price ($1.50 a yard) the claimant demands is not exorbi- 
tant for the rock excavation in that road diversion ? — ]So ; it is not. 

62 



2 Victoria. SeKsioiiai Tapers (No. 42) A. 1879 



+ 



By the Arhitraior: — 

Q. The next is item 30 ; one set of " cattle-guards at Station, $52d ; excavated 
it ot the Holid rock, $300." You have allowed nothing for that ? — No ; because the 
mtract price was ^150 for each cattle guard, if I remember right, and it was not my 
isiness to shift iho price. Now, when I think of it, the three cattle-guards that 
ere built last appear in Mitchell & Oakes' account, because they were built after the 
jcount was put'' in; I remember the cedars for that cattle-guard cost 850 without the 
'ork at all. 

Q. Item 31. The cattle-guard at $520, was excavated out of the solid rock; that 
ould not require any cedar? — It did not require so much, because we were at the 
•ouble to birn off the rock and do with less cedar, but it was just as costly as if it 
■as cedar from the bottom. 

Q. How much would be a proper pj-ice for that cattle-guard ? — About $120 or 
130. 

Q. How much would answer for the next one at Station 509 ? — At Station 509 
aere was no rock, and from $90 to $100, I think, put ia all that were not rock. The 
ign-boai'ds eo^:<L a good deal for making and fitting. 

By Mr. Mitchell: — 
Q. Wo charge here $300 from that difficult one ; would that be too much ? — ^Yes 

By Mr. O'Doherty:-- 

Q. I suppose they have to excavate the hole down into the solid rock? — ^Yes. 

Q. Considering that fact, and taking the sign- board into consideration, is $300 
)0 much for the work ?— Yes ; it is too much. 

Q, Would you not allow pretty near that much now ? — No. 

Q. Supposing we told you it had cost us that, would it surprise you ? — Yes; it 
ould, because they could do their work as well as anybody else. 

Q. There waj^ a third one ? — Yes; it cost $100. 

Q. Then, the amount you make for the first would be how much ? — $120. 

Q. And the second one ?- From $90 to $100. 

Q. And the third one? —It cost $100. 

Q. Then you have the amount for the three, $320 ? — Yes ; I would build twenty 
iles of them at that, and be glad to get the chance. 

Q. The next items we remember, 32 and 3^ ; '* Building crib;wharfing between 
ations 248 and 253, 500 yards, at $2.50, $1,250.*' This is changed, because it was 
ade neee^sar}^ by change of location at these places ; is that a fact. It seems that 
})iece of crib-wharfiing, according to their allegations, was built there under your 
iperv.ision and accepted ; then ii was carried away and rebuilt under your instruc- 
)n8 ; What are the circumstances of the matter? — There was none of the crib-work 
irried away ; the top logs may have been unloaded, but it was not carried away. 

Q. What was the reason for removing the point of rock on the oiher side? — It 
as intended to be removed from the very first, because the current of the river in 
le spring would come against the embankment and carry it away, but Mitchell & 
akes did not care to do the work, and it was- done after I hey left. 

Q. Then, it is not a fact to your knowledge that that piece of crib-wharfing was 
jstroyed ? — It was not destroyed. It is as good a piece of crib-wharfing as 
ere is in the world to-day, and most of it is covered with gravel now. 

Q. You are satisfied of that ? — I am more than satisfied ; I am sure of it. The 
»p logs wei-e destroyed on a freshet, and the one below it, as they had not time to 
ad the work with stone before the freshet came. That is the place that Oiell had 
)t seen when he was down, as it was covered with gravel. 

By Mr, Mitchell : — 

Q. You remember the crib-wharfing being built there the second year that we 
ere there, and I wanted you to move that piece of rock, and you told me t©go on 
id do it ?— Yes. 

fa6 



42 Vktovijt, Sessional Papers (No,42.) A. 1879 



Q. xind I asked you about the pay. Do you remember what you said to mo ?~ 
I do not. 

Q. I do ; you told me to go to a nice place. We finished that piece of crib->vharfing 
that fall, and the floating ico came on, and the spring freshet, and between the two 
they ripped it very nearly all out ? — It did not do it much harm. 

Q. Will you undertake to swear that it was never moved at all by the ice? — Tho 
top logs were moved a little — two or three feet back. 

Q. But you will admit that it got a pretty good thumping at any rate ? — Yes. 

Q. That is all you can remember ? — ft was moved back — the top logs— because 
they were not loaded with stone. The same thing happened at Station 114, 

Q. Did that knock any dollars out ot my pocket — the smash up ? — 1 have not 
the slightest doubt but it did. Some of the logs would be carried away and broken. 

Q. How much ? — I could not put any value upon it. 

By the Arbitrator : — 

Q. Item 34 : " Fencing the station ground with better class of fencing, and also 
removing fence off the line, after being built by Schreiber's orders, $160;'* YoQ 
never allowed anything for that? — It was admitted that it should have been allowed. 

Q. To what extent; do you know ? — I really forget it is so long ago — nine yearn 
ago, now. That fence is all of <v'dar, with side-bai*s, and it was whitewashed, and 
made handsome. It was first of .ill allowed, then forgotten again, and neglected 
being carried forward ; I remember it was double price for a quarter of a mile. 

Q. Do you not think that $1G0 would be a reasonable price for that fence?— I 
think it was understood that it would bo paid for at double price. It was well done^ 
and I think $160 would be a fair price. 

And the further examination of this witness is continued until 2 o'clock p.m.y 
to-morrow. 

Friday, February 21, 1879. 

On the 21st day of February re-appeared the said witness, whose examination 
was continued as follows : — 

Q. The^next item is 35, Quote extra expenses in slope-rock cutting between 
Stations 453 and 405 ; the claims there, five thousand yards of excavation at one 
dollar, for this reason. (See item.) To that time that the work was first finished 
to one slope, and then charged to another? — No; I think ncrt. We never exacted 
such a strict berm in that case, for the leason that the country was so steep that a 
six feet berm would only be a slope berm after all. 

Q. Was this rock that was taken oft' or clay? — It was clay ; we did not take 
any rock off. I do not think we would be justified in taking any rock off. 

Q. The specification of the slope was one-quarter to one? — Yes. 

Q. Was it finished according to that specification ? — Everything except the six 
feet berm was finished. 

Q. That six feet berm has nothing to do with what 1 refer to. I refer to the 
slope on the face of the rock-cutting itself. I want to know if the slope on the upper 
side was finished according to the specification and general instructions one-quarter to 
one ? — To the best of my knowledge there was only one foot taken off, and that is 
not more than the specified work. 

Q. Then, there has been no part of it made of an easier slope ? — Not to my 
knowledge. 

Q. If it were made bo, it would be shown on these cross sections ? — Certainly. 

Q. And these sections show the work as completed ? — ^Yes ; you will find if yon 
send down an engineer to-day to measure it that it is made one quarter to one. 

Q. Was there any object in making an easier slope ? — ^No; not a bit. 

Q. You stated distinctly the slope has not exceeded the general slope in the 
flpeeifieation ? — ^No ; it can be seen to-day by any man who wishes to examine it. 

64 



42 VictoiiH. Sestfionai Phixmh (No. 42 ) A. 1S7D 



By Mr. Mitchell : — 

Q. You say that those slopes have not been taken off anything beyond one- 
quarter to one? — I say so, most distinctly; not by any orders ^iven by me or by my 
assistant either. But, it* it was any more than that, it would only be a land-slide. 

Q. Would you be astonished that even after I got through with ray work Mr, 
Schreiber spent thousands of dollars there ? — I|tried to make you expend the money 
there before, but I could not succeed in making you do so. The clearage of the rock 
was such that it was necessary afterwards to slope it, beeause when the first train 
would come along it would be in danger of sliding down. 

Q. But it was not done by the contractors? — No; they refused to do it; they 
took it down to the specification figure, but it looked so dreadfully dangerous after- 
wards that it had to be takeii down further. 

Q. I understood you to say that it did not need that because the rock looked 
sound enough ? — We thought so at the time, but a year afterwards we saw that it 
had slipped and was dangerous. 

Q. But you are satisfied that the additional slope was not done by the contrac- 
tor ? — I am not aware that they took a yard out of it. 

Q. You aire satisfied, then, that Mr. Schreiber has taken some out of the slope ? 
—I am ; what I could not get you to do. 

Q. You do not remember of any portion of the work being at a greater slope 
than a quarter to one when I left? — I really do think there was some, but I am not 
prepared to state the stations, I think you took some out where Mr. Gordon worked, 
at Stations 456 and 457. 

Q. And also at the mouth of the cut ; we had to go to work at the bottom there^ 
and when We tackled the rock there we tripped it and you made us take off more of 
the slope ? — Yes ; the rock was undermined there, and had no footing at all, and if it 
had not been taken out there would have been a slide, and you had to pay the sub- 
contractor, Eobert Gordon, for taking out that rock. 

By the Arbitrated : — 

Q. You will not undertake to swear that the contractors did not do the work ? — 
I am very sure that Robert Gordon took out that rock, because the foot was taken 
from it and it was in a sliding condition, so that it was my duty to order it to be 
taken down. They were never paid for it because it was a lump sum contract that 
work was done, though, for sm'e, there is one thing I should not have said the other 
day about Station 520 ; I remember now, distinctly, how it occurred : the grade went 
into that cut about three hundred feet, and I denied that there was any rock taken 
out ; I was perfectly right in saying so, but I should have added that there were two 
deep catch-water drains taken out there also. 1 denied that there was anything done 
there, but I remember it now distinctly; I was perfectly right in saying that the 
bottom was not taken out, but those deep catch-water drains were taken out on each side. 

Q. I understand from what you say now that there was really no change of grade 
in that cut ? — No ; but the catch- water drains on each side had to be made as the 
quantity of water was so very great. 

Q. Could you give the quantity of excavation in those drains ? — It would be three 
hundred feet on each side. That would be six hundred feet, and would be equal to 
about half a yard to the running yard. 

Q. That would be about one hundred cubic yards in each ditch ; do you know 
what that is worth ? — I do not know what price should be awarded for that, but that 
was the amount of work, and it had to be done as wa could not get along without it. 

By Mr, Mclntyre : — 
Q. Are you sure that was not done in some other section ? — No ; it was done 
within one hundred yards of my own house, but it did not occur to me the other day. 
Q. The contractors charge for 916 yards at four dollars a yard ? — ^That is all 
nonsense. There was no more than I have said taken out of there, but we insisted 
upon the ditches being excavated out of the solid rock, and it was done at an en- 
ormous cost. 

65 
42 *— 5 



42 Victoria. Sessional Papers (No. 42,) A. 18W 



By Mr. Mitchell : — 

Q. How with regard to the slope of the New Brunswick cut ; do you remember 
Ike rock being tripped ? —Yes. 

Q. Do you remember as the cause of it the grade being changed in the cut, and 
when we went down the extra two feet that wo took up last, it undermined the 
slope ? — I do not remember that. 

By the Arbitrator : — 

Q. You mean to say that although you altered the grade there you did not 
change the slope ? — ^No. 

Q. Did you ever see any of my men working there with scaling ladders, taking 
off any of the slope, or seeing them suspended there on platforms working on the 
slope? — I do. 

Q. Would it not be the practice to take off the slopes as we proceeded with our 
excavations ? — You would have to take down the slope according to the specification 
to make it safe. 

By the Arbitrator : — 

Q. What could they have been doing with scaling-ladders ifthey were not taking 
off more slope ? — One quarter t) one was not sufficiently safe there, and more than 
that had to do taken off. 

Q. You then admit that more than one quarter to one was taken off the slope? 
— Yes; we had to get it done as it was not safe, and we never would have allowed it 
to remain there. If the contractors had not done it we would have had to get it 
done at his expense. 

Q. The rock, then, instead of being a firm rock, af» you said before, is an infirm 
rock ? — Certainly ; what I mean by its being a firm rock is when we took it out at 
one quarter to one ; in most cases it was firm enough, but in some places it was not 
safe. 

Q. Then he really did take off the slope in some places for which he has charged 
9,000 yards ? — He did, but I cannot give you any particular idea about the number 
of yards. 

Q, Altogether in that cutting there were some forty-five thousands yards?— I 
never measured these cuts because I thought it was a lump sum contract, and they 
would never be paid extra for it, so I did not keep run of the quantities ; I am perfectly 
at sea as to the quantities, 

Q. The next item is No. 36 : " Loss sustained in not getting a borrow-j»t 
between Stations 480 and 506." Is it a fact that operations were delayed for want 
of the borrow-pit ? — Yes ; it is a fact that they were delayed. 

Q. Why was not that borrow-pit procured in time to prevent that delay ?— 
Government red tape, I suppose ; I could see no other reason. 

Q. Did you endeavour to procure one ? — ^I did. I saw the contractors were 
suffering under the difficulty, and I did all I could to get it done, and so also did Mr. 
Brydges, but there was about a year's delay before it was procured. 

Q What was the nature of the damage sustained by the contractors for this 
delay ; in what way did they suffer ? — Yesterday, in order to partially make up for 
that loss we were allowing them seven cents for overhaul . After that they got into 
the borrow-pit, and there was no more allowance given them for overhaul. 

Q. Then they were paid for that delay by being paid for the overhaul?— 
Certainly ; bat they would have finished the embankment a year sooner if they 
had had the borrow-pit. It was the heaviest embankment on the section, and the 
want of the borrow-pit retarded the work fully a year. 

Q. They could have finished the work so much sooner by getting the bottrow-pit 
at first ? — ^Yes ; and the work being finished sooner, the expenses of managemeDt 
would have been lessened. 

Q. You could not give any idea of what the amount of damages should be- They 
claim $2,000. Would that be a reasonable amount ? — I should say it would be a 
reasonable amount. Some of the caher items are far more reasonable than that. 

66 



42 Victona. SesfflonA* Papers (No.42 ) A. 1879 



Q. Do you think it was not your own fault that a borrow-pit was not obtained 
sooner than it was ? — I do not think it was. I did all in my power to get it by 
writing to Mr. Brydges, and to the department, but Fraser wanted such an extra- 
vagant figure that we would not pay it. He asked, in some cases, $2,000 an acre. 

Q. The next is No. 37 : " To soft bottom not inclosed in cross-sections, Stations 
410 to 120, 495 to 502, 148 to 170, 19,500 cubic yards at 20 cents a yard 85,850."— 
Now this is an item that 1 would suppose naturally to be provided for in the 
shrinkage of the embankment by the average struck over the whole. What was the 
nature of the bottom ? — It was very soft. There were lay-flats formed of inundations. 
In years gone by they had been the bottom of the river. 

Q. How far could you put a pole into them ? — You could run a pole down 80 feet. 

Q. What are the dimensions of that 19,500 yards?— At Stations 410 to 420, 
there was a good deal of shrinkage which might be provided for by fifteen per cent, 
allowance. I'hen from Station 495 to 502 the water took it away sometimes, and I 
am not prepared to say what percentage of shrinkage there would be there. 

Q. More than the usual allowance of ton per cent, would be required there ? — 
Certainly ; it would require more than that. Wo tried to prevent it by putting in 
as much rdck there as we could at great cost to prevent it from being carried away. 

Q. Then, with regard to the third place from Station 138 to 170 ? — There was 
not any unusual shrinkage there. 

By Mr. Mitchell : — 

Q. You do not remember whether it was swampy or not ? — I know the brook 
was swampy. 

Q. Do you remember ever having any trouble there in burning the stump and 
roots on that place ? — No ; I do not remember that. 

Q. Don't you think that where the line runs there it was swamped ? — It is very 
near the level of the river, except at the double beamed culvert, I do not 
remember any swamp ; it was clay I think . 

Q. Do you remember when we were taking out that culvert, the quality of the 
first three or four feet in it ? — It had to be wooded I know. 

Q. If it had been a good sound bottom, would a good foundation have been re- 
quired ? — Certainly not. 

Q. Would you not suppose that an embankment put on there would sink in that 
soft ground ? — My idea was that it was so near the river it was well drained, and did 
ziot give way in any case. There was no weight of embankment there to make it 
sink. That is my opinion ; I am positive you would not get any allowance more 
than ten per cent, on that lor subsidence. 

By W. O'Doherty :— 

Q. Is it not engineering practice to allow ten per cent, for subsidence in an 
embankment, where the natural surface is solid ? — Yes \ but when the contractor is 
two years in building his work, he does not make much out of that. 

Q. Do you not think that forty per cent, would be nearer correct than ten per 
cent, in this case ? — It was a bad flat, but that is too much ; twenty per cent would 
be about a fair allowance. If we had known sooner it would have been marked on 
the paper 25 per cent. 

Q. Would you not suppose where it washed away by the river that it would 
require twenty-five per cent, for shrinkage also ? — No ; I do not think so. 

By the Arbitrator : — 

Q. The next item is No. 38 : " Loss sustained in not receiving payments on war- 
rants promptly in the years 1873 and 1874 ;" they claim $5,000. I want to know if 
there was that delay on which they base their claim ? — There was a delay in paying 
the estimates. 

Q. How long did it usually take for the estimates to be paid ? — For the first two 
years they were very promptly paid, but towards the end it was something frightful 

67 



42 i-fi J 



42 Victoria. Sessional rapcm (No. 42,) A. 18W 



down there. "When we lived amongst the men they have been round my bouse by the- 
hundreds, thinking I had something to do with the delay when they were not paid. 
All I could say to them was that I did not think the contractors had got their money. 

Q. It was towards the end of the work that these troubles began ? — ^Towards the^ 
last few months. 

Q. And the Commissioner had to send down the paymaster to pay the men ?^ 
It was before that j when Mr. Stephenson came down, the work had been all 
finished. 

Q. What was the length of time the men were out of their pay ? — ^Two months. 
They got exceedingly uproarious about it. 

Q. There was a good deal of trouble in getting the work done under those cir- 
cumstances ? —Yes ; that spoiled everything, because the men got to be the managers 
of the road. I never found out why the delay occurred ; it was some misunderstand' 
ing up at Ottawa. 

By Mr. Mitchell: — 

Q. Do you think five thousand dollars would pay us for the damages we sustained 
in carrying on our work, in consequence of this delay in payments ? — ^It would be- 1 
very difficult to tell when you had such a lot of men who were under wages and 
would not work. 

Q. Would you have been in my place for five thousand dollars, if you were the 
contractor ? — ^No ; I would not have been in your place for any consideration what- 
ever ; it was a bad state of affairs. 

Q. Then, you do not think that $5,000 would be too much ? — ^I would not like lo 
give an opinion upon it. 

Q. But you think the damage must have been very great ? — ^I am positive that 
the damage was very great. 

By the Arbitrator : — 

Q. I want to ask you with regard to the prices you allowed for progress esth 
mates. Yon have not allowed the full contracc prices in any of your progress esti- 
mates at all. I want to know how you arrive at those prices, and why you adopted 
them ? — ^Those prices were arrived at by Mr. Marcus Smith and Mr. Fleming, ift 
order to make the bulk sum under the contract price. 

Q. You mean to say that, if you calculate the total quantities of the bill of worl& 
at contract schedule prices, it would overrun the bulk sum of the contract ? — ^Yes. 

Q. Then, you had to reduce all those items pro rata f — ^Yes ; in order that we 
should not overrun the bulk contract. 

Q. Did you determine that yourself, or was it done at the head office ? — ^I didit^ 
under instructions from Mr. Fleming over his own signature. 

Q. Have you got the original calculation of the original bill of works ? — Jlo ; I 
have not ; it was burned in the Pacific Eailway office here with other papers. 

By Mr, Mitchell : — 

Q. In making up the progress estimates, do you remember yourself and your 
superior officers taking out a 6un\ of money — from forty to sixty thousand dollars— 
from the lump sum, in the first place, and setting that by for what you called contin- 
gencies or unforeseen difficulties ? — Yes ; that is done in every contract, but I do not 
remember the amount ; I think it A^ as twenty thousand dollars, but I am not prepared 
to contradict you. After extending every little item out at so much per cuoic yard, 
there was a balance left, and that was called contingencies. 

By Mr. O'Doherty : — 

Q. What right had you, i;nder the contract, to treat the contractors inthat way ? 
— It is done in every contract. 

68 



12 Victoria. Sessional Tapers (No. 42) A. 1879 



By the Arbitrator ; — 

Q. I want to know if the paper now produced'as Exhibit No. 9 is Mr. L. Q-. BeU'g 
igures and calcnlations ? — Yes ; I recognize it as his calculations. 

Q. I see here that he is giving the figures for every portion of the crib-wharfing 
t the particular stations, the areas, mean areas and length ; is not that what you 
aght to have given me ? — Yes. 

Q. I find he has returned here a sum of 53,041 yards against the 40,000 yards 
1 the original belt of works ? — Yes ; that is making out more than I did ; I can give 

explanations about it. 

By Mr. O'Doherty ;— 

Q. Was that crib-wharfing done according to the plans ? — No. 

Q. Wherein did it differ from the plan ? — It would be an impossibility to make 
i according to the plan ; each section was different. 

Q. Were they made according to the plan ? — In no case that I am aware of. 

Q. Then, why did you not require them to be made according to the plan ? — The 
ountry would not allow it. 

By Mr. Mitchell: — 
Q. You remember the Metapedia Eiver, I suppose ? — Yes. 

Q. What is the shape of the bottom of that river as a general thing ? — Flat, and 
pom two to three feet deep, I suppose. 

Q. Was not a great deal of our crib-wharfing in the rivei- ? — ^Yes. 

Q. Mostly all of it? — Yes ; especially where Alexander MacDonald workel. 

Q. And at the " Devil's Hole " also ? — Tliat is an exceptional place. 

Q. Up where McCaul built : was that also in the river ? — Yes. 

Q. Only it was side-hill ground ? — It could not be side-hill ground when it was 

1 the river and the river was flat. 

Q. You must not forget that the crib-whai'fing was two to one ; and it only goes 
ack on the tail of the slope ? — But then if the ground is flat I don't see that it can 
iise on the tail of the slope. 

Q. Which was built first : the crib-wharfing or the embankment ? — In many cases 
ley were built both together. 

Q.' Is it a fact that th e crib-wharfing was built before the embankments were 
lade in many cases ? — In some cases he did, and at other times they went both 
►gether. 

And the further examination of this witness is continued until to-morrow at ten 
clock. 

Saturday, 22nd February, 1879. 

On the 22nd day of February, 1879, re-appeared the said witness, whose 
[amination was continued as follows : — 

By Mr. O'JDoherty .— 

Q. Can you state from memory that the plans show all the changes ? — I think so. 

Q. Would you undertake to swear it? — I ought to be able to swear it, but I 
ould not be justified in doing so after a lapse of nine years. My memory serves me 
lis far : I thought when I sent the plans here that every change was shown on 
leni. 

Q. But would you not undertake to swear it absolutely ? — ^I might have made 
I omission, but I do not think so. 

Q. At Stations 620 to 509, where the gravel is, you will not for the same reafion, 
suppose, swear that the contractors did not grade down to that new line? — ^I 
.mitted yesterday that they made the catch-water drains. 

Q. But we stated positively that we did not take out that bottom ? — ^I will not 
idertake to swear that they did not do it ; but if it was done it was entirely without 
y consent. I went to Scotland for two months, and it might have been done then ,' 
will not swear that it was not done. 

69 



42 Victoria. Sesdonal Papers (No. 42.) A. 1879 



Q. At the time this work was done, I believe you have toM us that supplies of 
all kinds were extremely high — somewhere about two or three times the ordinary 
price ? — I did. 

Q. And labor and everything in proportion was from two to throe times the 
ordinary price ? — ^Yes; the contractors themselves were to blame principally for 
the price of labor, because they stole the men from each other, and MitcheU here is 
as good at it as anybody else. 

Q. At all events labor was very high ? — ^Yes ; it was just about one4ialf more 
than it should be ; it was double what it is to-dav. 

Q. It would cost two or three times as much to do work then m now ?— It 
would cost double what it would to-day. Skilled labor was at an exaggerated price 
altogether; stonecutters were getting from $2.50 to $3 a day. The men Were not 
in the countiy, and they had to be run after. 

Q. Then, you would not think that when they were taking out the bottoms^ 
some of them wet bottoms — a grading down to the new grade, that $4 a cubic yard 
would be too much for it, considering the extravagant price and the nature of the 
work ? — It is impossible to arrive at any particular price ; I know it is a very costly 
proceeding altogether. I would as soon take out three feet under ordinary circum- 
stances as one. 

Q. Do you think you could make asy money out of it at $4 a yard for it, then t 
— ISo ; I do not think the contractors could make any money at any reasonable price 
taking up such bottoms, and I am 28 years at such labor. 

Q. i asked you the other day to make up the quantities of rip-rap at Fraser's 
Plat; have you done so ? — No ; I have not, but I will do so on the first opportanity. 

Q. Were you present when that work was finished at Man's Hill, where the water 
works were brought into play ? — Yes ; I was there afterwards, and the water works 
were applied higher up. As I had to go to Mr. McGreevy*s contract I had to pass 
over this road every day. 

Q. Would you not call the work that was done there finished in a workmanlike 
manner ? — ^Yes ; but wa never asked the contractors to dress the slope. 

By the Arbitrator : — 

Q. What was that mentioned ? — ^It was a strong gravel. 

Q. Did it require the use of the pick ? — Yes ; and semetimes it would remain 
like little monuments. 

Q. In what way did the water remove it ? — Where it was not conglomerated it 
would wash the clay away. Generally, it was a loose gravel with streaks of hard pan 
through it. 

By Mr, MitcheU : — 

Q. Will you admit of any change of location between the Bestigouche Bridge 
and my house ?— Yes; between Station 461 down to 607 + S6, or thereabouts. 

Q. Where did the material come from to make up this embankment between the 
Eestigouche Bridge and my house ? — It came from the cutting arid three borrow-pits 
— the one at the church, the one at your house, and the one at ihe bridge. 

Q. That is three borrow-pits and the cut ? — Yes. 

Q. That is all that you measured there — the three borrow-pits and the mainline 
cut? — ^Yes ; between 480 and 510, that was all that I measured. 

Q. Did you measure any work there ? — Yes ; I did. 

Q. Where did we get it? — ^You went away to an island in the middle of the rivet 
and took some stuff from there. 

Q. Was that measured ? — Yes 

Q. Are you sure it was an island? — ^Yes; you took some sand or something froni 
there. 

Q. Can you produce any measurements of that work, or how did you come at itt 
— ^I think I did not trust it to anybody ; I measured it myself, as it was rather difli- 
cult to measure. I did not care about the difficulty. It would not exercise my mind 

TO 



i Victoria. Sessional Papers (No 42.) A. 18/9 



) any rate^ as we would have had to pay yon for it if it was in that embankment, but 
e had to give you the progress estimate, and I would not trust any body else with it, 

Q. Then, all that you allowed there was whatever the cross-sections would give 
m. ?•— Yes ; that is all that you would get, and all that you will ever get. 

Q. Do you remember how l<Mig we were working there? — I remember Mr. 
leming giving me a wigging for allowing you to put it into the bank at all, but I 
m't think it was bad stuff. 

Q. Would you l^ink there were thirty men at work there, and from fifteen to 
renty horses? — ^There were all that of horses, and I cannot remember about the 
en. 

Q. Would you think they were there at work for a month ? — ^Yes ; three weeks, 
i any rate. 

Q. If the hottom was soft there in that hole at my house, it would ta]ce some 
K thousand yards to bring it up to the level of the cross sections ; I would not have 
)en paid for it admitting that the bottom was soft ? — ^Not beyoud the ten per cent* 
do not think your claim would amount to much in that case as you were at the 
reat trouble to get stone for it. 

Q. We put several thousand yards down there that went out of sight and were 
9ver seen ? — Yes. 

Q. Have you not often made me put in rip-rap there until you thought you had 
lougb, and a week after you would make us go to work and put in more, and there 
as not enough then ? — I did not anticipate it would take as much as it did. 

By the Arbitrator ;— 

Q. Speaking of that embankment between the Bestigouche Bridge and Station 
10, how did you ascertain that quantity of embankment; was it by the borrow-pits 
* by the measurement of the bank itself? — It was by the measurtment of the bank 
self, and, so far as the test-pits went, the measurement there was only for progress 
itimates. 

Q. In determinimg the quantity of embankment there, did you allow anything 
•rthe shrinkage of the bank? — We allowed only ten per cent. 

Q. Can you tell me how much you allowed for that altogether ? — There would 
>t have been more than 7,000 yards allowed there, but this haul was in rather an 
^kward place, and it took more than that. 

Q. Which quantity am I to take as your estimate of it ? — 63,600 yards. 

Q. Does that allow the ten per cent, for shrinkage ? — Yes. 

Q. Is that less than the original quantity ? — ^We allowed it one foot. 

Q. What was the original quantity there? — 78,560 cubic yards, I think. 

Q. You have given it as 72,000 yards in your statement ? — They were so often 
langed, it was impossible to remember them. 

By Mr. Mitchell: — 

Q. Do you remember getting down a foot on the same embankment between 
Ations 480, 509 and 510 ?— Yes. 

Q. Do you remember putting it back again ? — No ; I never put it back again. 

Q. Will you swear it was not put up a foot again ? — I think so; I am sure it was 
3ver done by my orders or by the oixlers of my assistants. 

Q. Would you be surprised now if you found eut that the red line on the plan 
the grade that is now used ? — I say it is higher than that now. The Philadelphia 
ridge Company sent one iron that w© had to make it two feet higher for. 

Q Do you remember how it was that that borrow-pit, on Eraser's Flat, that you 
ud sent out for me did not give near the quantity of stuff that was required for that 
nbankment. You remember that the limits that you gave me in the first place 
ere all taken out, and you to put one in again to lake out more ; do you remember 
lat ? — I do. It was very bad stuff. That was not our doing. It was the stuff you 
ade embankments of. It shrunk. 

71 



42 Victoria. Sessional Papers (No. 42^) A. 1879 



Q. Did not I have to go back and take at least half as mach more out ?— I dd 
not remember, but you went back twice. 

Q. When you were laying that out in the first place, it was then you lowered 
the grade, and it did not require so much stuif, but when you raised the grade dien, 
would it not require more stuff? — ^The grade was not raised by you, but it was raised 
by the ballast contractor. 

Q. Will you swear that there is not four feet of gravel to day on that embank- 
ment? — I think there are four feet on it; there are two feet that were put on by 
the Philadelphia Bridge Company, or the Phoenixville Bridge Company, and there 
were two feet originally. 

Q. This only shows a difference of one foot? — It was under a different con- 
tractor ; it was John J. Macdonald that raised it. 

Q. Could the other foot have been put on there unknown to you ? — ^I think not 

Q. Your memory is good, and you could not have forgotten it ? — I think not 
It must have been done under my order, if it were done, and I never gave any orders 
to raise the grade there. If you were just as cute as you think you are, you would 
have put on two feet there. 

Q. Have you got any of your own private pocket books that you used to have 
there? — No; Mr. Schreiber has them all. 

Q. Do you ever remember drawing a sketch, something like this (sketch pro- 
duced) and remarking that you had put it an inch to the foot too high, and after all, 
it was found in the following year to be two feet too low, and we had the ten per 
cent, to go upon ; do you remember you and I standing on the bank below my own 
house, when I spoke of this stuff and said 1 did not see where it was all going to, 
when you dreiw the sketch for me and showed me the old line where it was, and also 
showed me a new line where I wanted it tilled up to ? — Yes ; I remember that con- 
versation, and I made you put on the two feet that the road required, but that was 
not raising the grade. 

Q. Do you remember the conversation between you and me when 1 considered 
that we would put on this extra foot in a few days and got through with it, and you 
told me that there was more than that ; you drew the slopes ar»d showed me where 
the stuff was, and that was the first time I knew where the stuff was going to ?— I 
remember all of that; that was when they were coming up the steep road with the 
French ponies drawing the stuff. 

By Mr, O'Doherty :— 

Q. They made the embankment up to the requirements of the grade the first 
year? — Yes; but they were so long about it that they had to make it up on two 
different occasions. They made it up to the levels we gave them first. 

Q. Subsequontly, you made them put on two feet more? — Yes; the next year 
we made them put on two feet more. 

Q. And the next year two feet more ? — Yes; towards the Kestigouche Bridge it 
was done twice. 

Q. So that you made them put on four feet extra ? — Yes, the stuff was of a very 
bad description to make embankment of. 

By the ArhUrator : — 

Q. It appears, according to your statement, that after they got your levels they 
put on four feet more than you have given them credit for? — Yes. 

Q. When they had put on four feet more, did it absolutely raise the embank- 
ment four feet above the grade?— ]So; it required that much to bring it up to the 
proposed grade. 

Q. That was the natural shrinkage of the bank that he had to make up? — Yes; 
it was on account of the extraordinary quality of the stuff of which the bank was 
made, sand and clay and twigs. 

Q. You say there that you allowed ten per cent for the shrinkage; do you think 
that you allowed enough ? — Certainly not. 

73 



12 Victoria. Sessional Papers (No. 42.) iu 1879 



Q. How much do you think ought to have been allowed ? — It would take twenty- 
ve per cent to make up for that one borrow-pit at the bridge. 

Q. I am speaking over the whole length of the embankment ? -No; we allowed 
Qough for that. 

Q. What quantity come out of that borrow-pit ? — I do not remember now ; I 
link there were about tent to twelve hundred feet of embankment made out of that 
Dnx)w-pit from Station 480 to Station 490, or thereabout. 

By Mr. O'Doherty :— 

Q. For the four feet added to that bank, taking into consideration the ten per 
ant. which you allow any way, would not fifteen per cent extra be much less than 
16 four feet put on ? — The shrinkage was very great. 

Q. Inasmuch as you allowed only fifteen per cent extra for that, though you 
lade them put on four feet extra, ia there not an inconsistency ? — ^No ; it is what is 
oatomary. 

Q. Did not the amount of material comprised in four feet extra, make more than 
he twenty-five per cent, extra which you speak of? — I think so. 

Q. Do you not think it would come nearer to forty per cent ?— No ; I do not 
hink it was so bad as that. 

And the further examination of the said witness is postponed until Tuesday, the 
!5th instant. 



Ottawa, Thursday, 27th February, 1879. 

Leonard G. Bell, called and sworn, was examined by the Arbitrator as 
oUows : — 

Q. I learn from looking over this case that you were the District Engineer upon 
lection li^?— Yes. 

Q. How much did your district comprise ? — It comprised from the beginning of 
lection 17 to the end of Section 15, seven sections. 

Q. During what time were you in charge of that district ? — From about April, 
872, or May, until I was officially disconnected from it in October, 1873, but I did 
ome little business with the district afterwards, until Mr. Schreiber came, I think, 

Q. When was that ?— I left it finally in May, 1874. 

Q. During the time you were there, how frequently did you visit Section 19 ? — 
suppose I must have seen it twice a month, and sometimes more frequently. 

Q. G-enerally, about twice a month, winter and summer ? — Perhaps not quite so 
ften in winter; it was in the middle of my district, and going up to Section 17, I 
irould pass through it. 

Q. To see that the work was being done according to contract? — Yes. 

Q. And also to be a check upon the Engineer in his measurements for progress 
stimates ?— Of course it was part of my business to see that the progress estimates 
rere correct, but I can hardly say that I made an official check of it. 

Q. You satisfied yourself from your visits from time to time that he was making 
on*ect progress estimates ? — I was, to the best of my judgment. 

Q. In order that he might make those progress estimates, he would certainly 
'ant to know what the total quantities were, it being a bulk sura contract ? — Yes. 

Q. The total quantities had been estimated in the original bill of works ? — Yes. 

Q. And there had been alterations from time to time ? — Yes. 

Q,> And those alterations aflPected the total quantities in one way or the other ? — 
es. 

Q. It was necessary, therefore, I suppose, for you, in your position as District 
ngineer, to have a knowledge also of those total quantities ? — Yes. 

Q. I find amongst the documents here, one in your own hand-writing, I believe, 
I which you give an estimate of the cost of the work, giving the value of each 
em in detail. It is now fyled as Exhibit No. 12, "Eeturn estimate Contract 19, 
cclusive of the Eestigouche Bridge, total quantities and rates revised schedule, 
Itli November, 1873,*' Is that your hand writing ?— ^It is. 

73 



42 Victoria. Seasional Papers (Na42.) A. 187» 



Q. Did you Bubmit that to the Chief EngiDeer for his approval? — ^I most have 
done 60 for it is my writing. 

Q. Did yon ever get his approval on it ? — ^I cannot say ; I do not remember ; it 
is dated 26th Novemter, 1873, and I suppose I was in official connection with the 
work there, but I got notice from the Commissioners about the end of October, and 
my services ended 31st December, so that I was in official connection with it then. 
This exhibit is in my hand-writiig, and I must have made it at the time it is dated. 

Q. I see the prices is this exhibit, at which the quantities are returned, do not 
correspond with the prices in contractor's schedule. Where did you make the dif- 
ference ? — I do not know where I made the difference. 

Q. If you had made the calculation at the contractor's schedule of prices would 
it not have over run the bulk sum ; it has been stated in evidence, and it appears on 
the face of things here, that if the whole of the work in the original bill of world 
had been calculated at the contactors prices, it would have over-run the bulk sum?^ 
I am not exactly aware of it in the present instance, but I believe it was a usual 
thing for them to over run nearly ail the tenders. 

Q. What is the bulk sum ? -$279,733. 

Q. Chat is the bulk sum of the contract inclusive of the Bestigouche Bridge?— 
Yes. 

Q. You cannot just now tell me on what basis you established those prices for 
the progress estimates ? — ^I merely established the price taking those quantities, and 
regulating the price as we considered fair to make up the bulk sum — ^relatively fair. 

Q. I think I have a letter here from you with reference to that ; instructions to 
Mr. Grant ? — Yes ; that is mine, (letter fyled as Exhibit Ko. 15). 

Q. What was your object in writing that letter; was it to instruct Mr. Grant to 
take that as his guide in making his estimates ? — Certainly ; to use these prices unlesi 
I telegraphed him to the contrary. 

Q. X>o you ever have occasion to revoke them or change them that you remem- 
ber of ? — No ; I do not think so. 

Q. Where did you get those quantities from which this estimate was made T-* 
They were lurnished me by Mr. Grant. 

Q. Do you know where he got them from ; do you recognize any of the docu- 
ments before you as having been before you previously. Take for instance this pro- 
file. Exhibit No. 4? — ^Yes ; I think it is the working profile of Mr. Grant. 

Q. Do you recognize any of Mr. Eobert Shanly's work there ? — No ; I do not 

Q. Do you recognize tracing. Exhibit No. 5 ? — I also recognize that as Xr» 
Grant's. 

Q. Do you find the quantities of excavation and embankment marked on thofld 
lands ? — Yes ; I see pencil figures. 

Q. Would you accept that as a finished piece of work? — ^No; the figures are 
not in ink, 

Q. The quantities of excavation and embankment are not marked in ink?<-rNo) 
there is nothing that you could depend upon. 

Q. You do not find the quantities set down as they ought to have been ? — ^No; 
they are not. 

Q. If you got from him any statement giving the details of those quantiti«0 
upon which your estimates are founded ? — ^I must have got his statement of thoflo 
quantites. 

Q. You got his figures from him ? — ^Yes ; I must have got them from him. 

Q. Only what you supposed would be the quantities ? — ^Yes. 

Q. There is nothing here to show how these quantities had been obtained ? — ^Not 
that I am aware of. I do not believe I have ever had in my possession the details <tf 
those quantities or a memoranda from which they were made. 

Q. You take them as furnished by Mr. Grant ? — Yes. 

Q. And you hold him responsible for their corpectness ? — ^Yes. 

Q. Now, we will come to a later period. I find a measurement of the crib- 
wharfing that seems to have been made by you. Is that yoar writing fyled tiB^ 

T4 



t2 Victoria. Sessional Papers (No. 42.) A. 187^ 



ixhibit No. 9 ; do yoa recognize the slips accompanying Exhibit No. 9 ? — ^Tes ;. 
iey are my calculations and my writing. 

Q. Can you tell when you made those calculations ? — One is dated from 4th June,. 

m. 

Q. That wi8 made after the action was commenced against the Government ? — 
68; I think I made the calculation here in the office. 

Q. What from ?— Fi*om the cross-sections (Exhibit No. 8). 

Q. From your knowledge of Section 19 (th% plans and returns of Mr. Grant),^ 
on endeavored to find out the quantity of crio-wharfing ? — ^Yes. 

Q. What is the quantity according to that return (Exhibit No. 9) ; 1 observe 
lat you have taken exact portion of crib-wharfing there ; giving the area, average 
rea, letigth and cubic contents ?— Yes. 

Q. And they specify the stations where they occur? — ^Yes. 

Q. And you have given the total quantity at something like 53,000 cubic yards T" 
-Yes, 53,047 cubic yaixis. 

Q. K you will follow it on, you Will find that you compared it with Mr. Odeirs 
leasurements ? — Yes ; I see Mr. Odell's total quantity is 46,407 cubic yards. 

Q. And you make it 53,047 cubic yai-ds. How did you make that out ? Was it 
x>m the cross-section. Exhibit No. 8, that you found these quantities ? — ^Yes. 

Q. Then you must have taken it station by station ? — ^Yes. 

By Mr. Mitchell:— 
There is a plan in the Depai'tment showing the diflferent pieces of crib-wharfing* 

By the Arbitrator: — 

Q. Did you make your calculations from such apian as Mr. Mitchell describes?— 
To; these calculations were made from the cross-sections. The plans that Mr» 
[itchell describes may have been in the Department, but I do not remember it. In 
16 original profile offered to tenderei's, the crib-wharfing and rip-rap as shown by 
lies (plan produced). 

Q. You could not make up the quantities of that plan ? — ^I got the length, but 
ot the area. 

Q. What is your impression about the result of that measurement. Do you 
link that is about the quantity that is there, or is it an excess. You have been 
7er the work a good deal, and seen its progress, and must bo better able to give a 
idgment than any one I know of, not excepting the Resident Engineer? — ^In going 
mr the work in that way, I did not attend very much to the details ; if I saw the 
ib-wharfing was of a proper size, I would at once pass it over. 

Q. But in some places it was very broad, for instance, at the Devii*s Hole ? — I 
lUst have believed that these measurement that are here, were fair measurements, 
itTC cannot remember any particular of noticing during the construction, whether 
le work was broad or narrow. It was not from any data of that kind I made this 
dculation ; I assumed those dimensions as being fair. 

Q. It was not simply an assumption ; you took them as actually measured on 
e cross-sections, Exhibit No. 8? — I believe in measuring the crib-wharfing, I 
aumed the back of it to be perpendicular ; I have tested one here, and I find that I 
.Iculated the back of the crib-wharfing as plumb. 

Q. Would you infer from that the whole of them were calculated in the same 
ay ?— Yes. 

Q. Do you not know for a fact that they were not all built plumb as you passed 
'er the work, or would you not know that instead of the bank being always plumb 
r the crib- work to be nlled against it, the crib had to be fitted according to the 
itural slope of the banks ? — 1 believe so, but I cannot tax my memory with any par- 
jular instance. * 

Q. Of course, then, if the rear of that crib-work was not always plumb yourmea- 
rement would be in excess ? — ^Yes. 

Q. You know nothing about Odell's measurement? — ^No. 

t5 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



Q. Do you know anything about the particulars of Grant's measurement ? — I do 
not, except generally, perhaps. 

Q. I found this document, Exhibit No. 9, amongst the other papers here; do you 
know how it came here; did you send it officially ? — I did not; I made the calcttla- 
tions here in the office, and I suppose tbe document remained with the papers. Mr- 
Schreiber was here at the time I was making those notes, and it may have been handed 
to him. 

Q. Then, you never made the return to the Department here as an official docu- 
ment ? — No ? except in that way. 

Q. Not formally ; it is not even signed by you ? — ^No ; Mr. Schreiber was here, 
and he knew what 1 was doing. 

Q. Did you, in the same manner, calculate the rip-rap ? — I cannot remember. 

Q. Did you about tbe same time, undertake to verify or check the measurernent 
of Mr. Grant as returned for a final estimate? — I remember spending a long time in 
considering it, and analyzing and preparing it. 

Q. Were you able to make anything out of it ? — I do not know that I was. 

Q. Were you ever called upon to give an opinion upon the subject?— Not 
publicly. 

Q. That return professes to give a final measurement, and it is the only final 
measurement we have of the section ; it professes to give the final result of the con- 
tractor's operations, and I have failed to get from the maker of it, the details upon 
which it is founded ; have they ever been given to you ? — No ; it was done after I 
left. 

Q. But you have not gone over the calculations to see whether they are right or 
wrong since ? — No. 

By -Mr. O'Doherty :— 

i^. It was while you were an employee in the office of Public Works that yott 
made this calculation that the Arbitrator has been examining you on ? — Yes. 

Q. You were directed by your superior officer, Mr. Schreiber, I suppose, to ascer- 
tain if the contractor's claim was correct or not ? — ^Yes ; it was with reference to that. 

Q. Made under the direction of your superior officer ? — Yes. 

Q. And that is the result of your examination ? — ^Yes ; it remained in the office 
AS part of my work done under official instructions. 

By Mr, Mitchell: — 

<^ We built the crib-wharfing before we built the embankment, did we not ?— 
I daresay you began it. 

Q« Did not we finish it in that way; did not we always keep the crib-wharfing 
ahead of the embankment 150 or 200 feet before wo came on with our embankment? 
— 1 do not know. 

Q. Had we any of it finished ? — I cannot say. 

Q. Do you know any ca&e where we ran ahead with the embankment first and 
'built a crib-wharfing afterwards ? — I cannot. 

Q. Then you consider that by giving me the crib-wharfing plumb down to the 
level of the cross-sections it would be all I would be entitled to; did you ever read 
the specification of the crib-wharfing ? — I have. 

Q. Was not all that crib-wharfing built out in the river ? — Yes ; 1 suppose the 
^eater part of it was ; the " toe'* went out into river. 

Q. Was the bed of the Matapedia river level all through; was it not a level 
bottom ?— Yes. 

Q. If I<5arried on the crib-wharfing ahead of the embankment, would not the 
slope from the back part of the top be out the other way instead of into the bank? 
In many cases, do you remember, I carried the crib-wharfing, clean back to the high 
ground ? — ^I do not. With regard to the crib-wharfing, although I could not state 
distinctly any particular point, my impression and strong belief is that, although th6 
embankment was not made first; still the crib-wharfing was not completed fii^st, hyA 

76 



2 Victoria. Sessional Papem (Now 42.) A. 1871^ 



lat it was begun, and perhaps not at the width necessary for the height, before the 
mbankment. That is if it were a ten feet crib, it would be begun so that it would 
ot have the width at the bottom. 

By the Arbitrator : — 

Q. You mean to say if the bank was to be ten feet high, it would have been built 
b the base in proportion to the ten feet; but it was not so built? — I cannot dis- 
nctly state the fact, but my strong impression and belief is that it was not. 

Q. You mean to say the crib-work was not up to the specification? — ^It was not; 
lat is my impression. From the memoranda of the 3rd measurement " calcula- 
ons of crib-work from cross-sections estimated, according to Mr. Grant's sketch, 
16 back of the crib to batter one to one.*' Mr. Grant gave me the information that 
) was so. 

Q. According to that, what would be the quantity from the memorandum^ 
Ixhibit 9 ?— 39,392 cubic yards. 

By Mr. Mitchell:— 

Q. I suppose you have seen the crib-work since it has been completed ? — I have 
Ben portions of it. 

Q. Was that crib- wharfing finished in a workmanlike manner? — I don't re- 
lember having made any objection to it. 

By the Arbitrator : — 
Q. You never condemned any of it ? — I don't remember. 

By Air Mitchell : — 

Q. Do you remember whether it was built to a batter of two to one or not in 
•ont ? — I do not remember. 

Q. Did you ever get any complaint in regard to that crib-wharfing that I was 
irrying out according to specification, and to the Engineer's stakes ? — I do not 
smember. 

Q. There was no complaint on that point that you remember of? — ^Not that I 
amember of ; it was five years ago. 

Q. Did you ever know of one during all that time deviating from the Engineer's 
»kes in any portion of the work ? — I cannot remember. 

Q. If there had been complaints of that kind, do you think you would have 
Jinembered them ? — ^If there had been any particular case I suppose I would have 
)membered it, but at the present time I do not remember of any. 

Q. Will you swear whether that work was finished in a workmanlike manner 
11 through or not when it was taken off my hands ? — I will not. 

Q. Were you with Mr. Schroiber the day he took it off my hands ? — ^I do not re- 
lember. 

Q. Did you meet them in Dalhousie in the fall of 1874 ? — ^I was not there then. 

By the Arbitrator : — 
Q. I would like to ask you about piling with regard to prices. Mi\ Schreiber has 
)t allowed as much for this work as the contractors claim. You remember at some 
ations piling was substituted for crib-wharfing, and it was recognized by the De- 
irtment that the contractors should be paid for it, and thay allowed $6,472. The 
mtractor's claim was $7,825 . 80. The difference is chiefly founded on the price 
lowed ; for instance, for the piling they charged 40 cents a lineal foot while the 
epartment allows only 30 cents. What would you think of such prices as that 
)wn there at that time? — I should think 30 cants a lineal foot ought to be a good 
rice for it, but I don't know. 

Mr O*l)oherty: — 
Q. Had you been asked that question without any statement being made as to 
hat the Government were paying and what the contractors claim, would you have 
Qown what to nay ? — I cannot honestly say that I would have known what to say 
x)ut it ; I have never done any work of the kind nor kept any account, except to 
)e it done. 

And further deponent sayeth not. 

77 



42 Victoria. SeMional Paper* (No. 42.) A. 1871 

Ottawa, Wednesday, 5th May, 1879. 
Egbert P. Mitchell, called and sworn, was examined as follows: — 

By Mr. O'DoJierty ;— 

Q. You are one of the beneficiary plaintiffs ? — ^Yes. 

Q. And the Mr. Mitchell who was examined before the Exchequer Court ?— Yes. 

Q. Tell us, as far as you can, about that rip-rap which Mr. Grant has not given 
in his evidence j tell us, lis near ;is you can, how much there was in it ? — ^Neiiher Mr. 
Odell nor Mr. Grant has retui'ned our measurement of rip-rap for the portion between 
Stations 480 and 494. 

Q. Did not Mr. Grant give it in his original return to the Department?— No; 
at least he did not the other day. 

By the Arbitrator : — 

Q. Does that embankment run above the water? — ^Yes. 

Q. And is the rip-rap along the whole of that distance ?'— Yes. 

Q. How thick is it on the slope? — It holds the fence, and the fence sills are four 
feet six inches. 

Q. Is that above the water ? — ^Yes. 

Q. How much above high-water mark? — The high water comes up to the sill. 

Q. Is it overflowed with high water? — ^Yes; but it never came to the fence 
but once ; it was the highest flood they ever had. 

Q. You say the width would be about four feet six inches on top ? — Yes. 

Q. Does it run down with the slope of the bank ? — No ; it runs clean back into 
the bank, and that in the bank we had to do according to contract. 

Q. How high is it ? — About three feet at my house, and at the bridge about nine 
feet. 

By Mr. O'Doherty :— 

Q Can you tell us how many yards is in that? — There should be between 4,000 
and 5,000 yards ; I do not swear to the exact quantity, as I never put a pencil on it; 
I have jusc taken a rough guess at it. 

Q. What is that worth a yard ? — ^It is worth a dollar and a-half a yard. 

By the Arbitrator : — 

Q. Where did the stone come from of which you made that rip-rap ? — From the 
other side of the river ; we brought it across on the ice ; we could not bring it in 
the summer time. 

Q. Across what river did you bring it ? — ^Across the Restigouche. 

Q. Is not that rip-rap a portion of the embankment itself; it was taken from the 
New Brunswick cut ? — ^No ; it is not ; we widened the embankment on each side 
with rip-rap in order to secure the fence ; I was with Mr. OdeU all the time while he 
was measuring all the work, only on that place. 

Q. Will you explain about this crib-wharfing ? — I contend that I ought to be 
paid for all the timber projecting under the embankment beyond the back of the 
crib-wharfing, and which was not measured as a portion of the crib-wharfing ; I also 
claim that I ought to be paid for all the gravel on which that projecting tiniber rests 
say of 10,000 yards in all. 

Q, Please give me the dimensions by which you make 70,000 yards ? — The ave- 
rage width of tbe first section is 16 by 12 feet, and the slope is two to one, making 
the bottom 24 feet, and the mean area of that 12 by 12 feetssl44 feet ; this is the 
first part of it ; the next part of the calculation is : it is 56*50 feet in length, making 
a superficial area of 336 feet. 

Q. You mean the area of the cross-sections ? — Yes. 

Q. In doing that you estimate, first, that the crib-wharfing is six feet wide on 
top ?— Sixteen feet wide on top. 

Q. That includes the gravel combined ? — ^Yes. 

Q. And the height ?— Twelve feet. 

18 



tfci 



'*• 



12 Victoria. Sesmonal Papers (No.42) A. 1879 



Q. And the base — how much ? — ^Twenty-four feet at the bottom and nothing at 
he top, making the mean ]2 feet by 12 feet high. 

Q. I want to ask you, did you always keep this crib-wharfing in advance of the 
mbankment as you were building it ? — Invariably ; I would not be allowed to do it 
a any other way, I had a crib-wharfing Inspector, whose name was Innis. 

Q. And as you furnished a section up, ho would approve of it before you were 
llowed to cover it? — Certainly ; I was not allowed to get my embankment within a 
lundred feet of it. 

Q. Then it was perfectly possible for the engineering staff or anybody to 
aeasure up that crib-wha^'fing before the embankment was placed on it ? — Yes. 

Q. Did you always build it according to the plan ? — Always ; only the last piece 
hat was built — I think some 500 feet, that they took off the longitudinal. 

Q. You say the crib-wharfing was always made in advance of the embankment, 
mt where there was no ouibankment, and you had to fit it against the rock on the 
atural bank, how was it ? — There was none of that ; there is not a bit of crib- 
wharfing there, except where the embankment is built upon it. 

Mr. O'Doherty asks leave to amend the particulars of the crib-wharfing so as to 
Qcrease the quantities to 75,000 yaixis. 

Application noted. 

By the Arbitrator : — 
Q. What was that crib-wharfing worth ? — Two doUai's and fifty cents a yard ; 
iat is Mr. Fleming's estimate and it i? a fair price. 

By Mr. O'Doherty:— 

Q. Then, this item of first-class masonry, 4,740 yards ; what was that worth ? — It 
i^as worth $20 a yard. 

Q. Did it cost you that to do it? — ^Yes; every cent of it; I paid my sub- 
ontractors $17.50 a yard for second-class to build it into first, and they burst up at 
hat, and I had to take the work from them and finish it myself. 

Q. This item of 400 yards of concrete at $4 a yard ; was that done ? — There was 
ome concrete put down tor the bridge. 

Q. Did you claim this apart from the bridge? — Yes ; it was put down in different 
(laces at culverts and bridges. 

' Q. Then, there are 7,415 yards of earth excavation in foundations ; was that 
^ork done ? — Yes; it had to be done to get the masonry in. 

Q. What was that worth ? — I think the contract price was 50 cents a yard, but 
t is worth a dollar. 

Q. Did it cost you that ? — Yes ; it cost us that ; in some places it cost more, 
Qd in some places it cost less. 

Q. Why should it cost so much as that? — In some cases we had to put in steam 
umps \o keep the water out. 

By the Arbitrator : — 
Q. And that item includes the pumping ? — Yes. 

By Mr, O'Doherty : — 

Q. Then, there are 300 yards of rock excavation in the foundation charged for ? 
-I know that work was done, for I was at the blasting of it myself. 

Q. Was it woiiih the price charged for it, $2.50? — ^It was; and if we had gone 
Dy depth with it we would have had to charge a larger price than that. 

Q. You charge here for 400 feet of fine timber in beam culverts. Is that lineal 
)et, or double track, or what is it ? — ^As far as that item is concerned, I do not 
smember. The Court took all my measurements from me ; I have not got them, 
went to Mr. Cassels, the Eegistrar of the Court, five or six times for them, but he 
)ld me he thought the Judge had lost them. Mr. Grant's figures are wi-ong. I 
ad to have this timber up from Dalhousie, a distance of thirty miles. It comes 
own the river about a hundred miles from where they get it, and it is very scarce. 

79 



42 Victoria. Sessional Papers (No. 42) A. 187? 



t w 



It had tQ be clean timber ; the inspector would not allow us to put in a stringer 
with a knot i?i it, and it was worth fifty cents a foot. I believe I paid fifty cents a 
foot for it myself in Dalhousie, and hauled it up besides. 

By Mr. O'DoTierty:— 

Q. With respect to the diorite quarry, how much of your claim arose since the 
signing of the last contract ?— Somewhere in the neighborhood of 92,000. 

Q. For filling protection at Fraser's Flat, at Station 485, you have charged 3,00(^ 
feet of filling at 40 cents a foot ? — Yes. 

Q. Was it worth that price ?— It was. 

Q. And you have 600 feet of king piles at 50 cents a foot? — ^Yes. 

Q. Was that a fair pi ice for it ? — Yes. The way I came to make a difference io 
that is, we had to shift our piling machine every pile we drove ten or twenty feat, 
whereas for the face piling 40 cents was a better price, because we only had to shift 
the machine a foot for every pile. 

Q. You have also charged for 1,200 feet of walling at 40 cents a foot; is that a 
fair price ? — It is. 

By the Arbitrator : — 

Q. What is the size of the walling ? — I suppose it would be one foot by eight 
inches. 

Q. Was it made of a single piece of timber sawn in halves ? — Some of it was 
made in that way, but there was a lot of it condemned because it was too small a* 
the small end. , 

Q. What price do you charge for the walling? — Forty cents a foot; it had all 
to be dovetailed into the sides and then bolted. 

Q. Then, the 900 feet of cross-bearing at 4 J cents a foot ; is that a fair price f 
— The cross-bearing is the best price of the whole. 

Q. What is the size of it ? — Six inches by seven ; but the sheet piling is very 
low. 

Q. Wrought iron bolts at ten cents a pound ; is that a fair price ? — It is too 
little ; I should have ten cents a pound for them as iron was very dear then. 

Q. Item No. 28. At item No. 28 I paid 500 cubic yards of excavation, as per 
plan, at 30 cents ? — That excavation was done ; the plan shows it. 

Q. And 2,700 feet of rock put on as rip-rap at $1.50 a yard; was that a fair 
price ? - Yes. 

Q. The total amount charged for these sub-items of Item No. 28 is $7,825.80 ; is 
that a fair price for that work ; did it not cost you that ? — ^Yes : the only profit in 
that work is whatever I got by the back bracing. I never had less than half a dollar 
a foot for piling in my life ; piling is worth all over the world 50 cents a foot. 

Q. Down there the prices of everything were very high at that time ? — ^Yes. 

Q. Two or three times what they are now in this section ? — ^Yes ; i had a little 
advantage in not having to move the piling machine in the face piling. That is the 
reason why 1 put it down to 40 cents. 

Q. Item No. 29, road diversion at Station 114, $1,218. I think you agreed 
upon the pric^ with Mr. Grant for that ? — ^Yes. 

Q. Was that work done, and is it a fair price ? — ^Yes. 

Q. About those cattle-guards ; you charged $3 for one and $1.50 for the other^ 
which Mr. Grant says was too much ; but he says there was a third cattle-guard ; 
what do you think would be a fair price for them ? — I consider those fair prices. 

Q. Would you be willing to let the three go at $4.50 ? — ^The $3 one was the 
worst of them all, because it was excavated in solid rock. 

Q. What would be a fair price for the three ? — I think the price charged is none 
too much for them. 

Q. There is only a price charged here for two ? — The other one was at my housa 
and it was not worth so much, but I should say it was worth $1.00. 

Q. That would be $5.50 for the three ?— Yes. 

Q. Is that a fair price ? — ^Yes ; I think it is. 

8y 



2 Victoria. Sessional Papers (No.4a) A. 1879 



By the Arbitrator : — 

Q. How many cattle-guards and road-crossings did you make ? — Three. 

Q. You are aware that you were obliged by the contract to make two ? — I 
on't remember; the bill of works would have the two main road-crossings down 
nd the one at my house is the extra one. 

By Mr. O'Dofierty. 
Q. Now, about this crib wharfing that was carried away ; you have stated in 
^idence before the Court that it was carried away by ice ? — Yes. 
Q. And under the second contract did you build that twice ? — Yes. 

By the Arbitrator : — 

Q. You are aware that Mr. Grant says it was not carred away ? — He says only 
)me of it .was carried away. 

Q. He swears that it was not carried away that it was only damaged by the ice; 
re you perfectly satisfied that it was altogether carried away ? — ^It was all carried 
way but the bottom logs ; the stone tumbled down to the bottom log and held it 
ist. 

Q. What was the cause of that ice coming that way ? — They shifted the line and 
irew it out into the river; there was a change of location; and when they went 
) build the crib wharfing the ice shoved and it struck a point of rock on the other 
de and narrowed the channel ; the ice had not room to pass, and it shoved over to 
le crib wharfing and tore it away. 

By Mr, O'Doherty : — 

Q. Did you inform the Engineer of that danger ? — I did, and suggested to him 
bat the rock should be removed before the crib wharfing was built. 

Q. If the Government had removed that point of rock when you pointed out 
be danger, the crib wharfing wcvild not have been carried away ? — No ; this rock 
^as afterwards taken away by orders from the Government. 

Q. This crib-wharfing, you say, was rendered necessary by the change in the 
^cation of the line ? — ^Yes. 

By the Arbitrator : 

Q. At what station did this occur ? — Between Stations 248 and 253. 

Q. Was that crib-wharfing built in advance of the embankment ? — ^The crib- 
rharfing was built as the embankment progressed. 

Q, Not in advance of it? — No; that is where the washing took place; we 
rould build an area of crib-wharfing and then wash the embankment down upon it. 

Q. Was that crib-wharfing fitted to the ground or to the bank of the hill, so 
aat the back part would not be perpendicular, or how was it ? — All the crib-wharf- 
ig there was pretty level ; the channel of the river is on the other side, and the 
ottom of the river is no deeper within two feet of the channel than on the side ; it 
I perfectly level. 

By Mr, irDoherty : 

Q. " Item 34, the price paid to Fraser;" is that a fair price for the work? — I 
jnsider it a fair price ; I paid that to the sub- con tractor who did the work. 

Q. " Item 35 :" you claim five thousand dollars for sloping the rock at the New 
►runswick cut ? — Yes. 

Q. Is that a fair price for the work? — Yes; how we came to charge so little 
or that was the clearage of the rock was downward, and we had an open face to 
rork on. 

By the Arbitrator : 
Q. How did you get the quantity ? — I got it by taking the difference between 
'te slopes that are there now and the slope of one and a quarter to one ; the differ- 
^^^ measurements were on the sheets I brought up with me ; they were put into 
•he Court, and it seems the judge has lost them. 

81 
42 I— 6 



42 Victoria. Sessional Papers (No 42.) A. 18T> 



Q. Could you give them to me now ? — No. 

Q. Did you reduce it to a uniform slope of ono-half to one, or did it go accord- 
ing to the nature of the slope ? — We took it out according to the nature of the rock, 
because the rock stood on edge, and the water getting into the seams would freeze 
and tumble it out on the track. 

By Mr, O'Doherty : 
Q. From your memory of it, are you satisfied you took out 5,000 yards ? — ^Yes; I 
am satisfied I took out that much — every yard of it. 

By the Arbitrator : 

Q. How much did you charge for that ? — One dollar a yard. 

Q. Is it worth that ? — Yes ; it is ; it was a very awkward piece of work to do; 
we had in some places to erect staying and suspend it with ropes from the top of 
the cliff so that the men could work at it. 

Q. Do you think it cost you that much ? — I think it did. 

By Mr, O'Doherty : 
Q. You claim 19,500 yards at 30cts. per yard for soft bottom ; are you satisfied 
that there was that quantity of cubic yards, and that it was worth SOcts. a yard?— 
Yes ; and there are 88 yards that I did not put into the bill ; but taking the dimen- 
sions there are 88 yards more. The original quantity was 24,088 yards, and I al- 
lowed 4,500 yards for the soft material, from which I would get a benefit ; I give 
credit for that amount. 

By the Arbitrator : 

Q. Where did the earth come from to make up that amount; was it from a 
borrow-pit or excavation ? — Some places it came from borrow- pits. In all those 
places it came from borrow-pits : Stations 410 to 420, 495 to 502, 148 to 170. 

Q. You have given the dimensions for each of these places ? — Between Stations 
410 to 420, one thousand feet, but I only charge them for 233 yaixis, nearly 700 feet, 
by 16 yards in width, by IJ yards in depth ; then between Stations 502 and 495, 23^ 
yards ; again, 700 feet, or nearly so, 26 yards by two yards. Prom Stations 148 to 
170, 733 yards in length, 15 yards in width by one yard deep. 

Q. Altogether amounting to how much ? — ^Amounting to 20,038 yards; allowing 
for the soft material 4,500, it will give a balance of 19,588 yards. 

By Mr. O'Doherty : — 
Q. Was any portion of this measured by the engineers, either as excavation in 
borrow-pits or road-crossing ? — No. 

Q. Or was it allowed in the embankment ? — ^No. 

By the Arbitrator : — 
Q. You cannot undertake to say that Mr. Odell has not included it in his 
measurements ? — I do ; it is material that is below the cross- sections entirely, and 
has gone out of sight in the soft places. 

By Mr, O'Doherty ;— 

Q. All that is below the surface and out of sight is not included in the measure- 
ment of the engineers? -It is noi. 

Q. Then, the :; jxt item, $5,000, sustained by not receiving the moneys at the 
proper time; did you sustain thai loss? — Yes; and more. 

Q. Was it by any fault of yuiirs? — ^None whatever; I earned the money but 
didn't get it. 

Q. Had you done everything that was to be done on your part to entitle you 
to get the money ? — Yes ; J had done everything the Engineer ordered me to do, and 
did it in a workmanlike maiiiier that gave every satisfaction. 

Q. Whose fault was it that you didn't receive the money? — The fault of the 
Government, of course. 

82 



12 Victoria. Sessional Papers (No 42 ) A. 1ST9 



Mr. O'Doherty asked leave to add to his particular!^, the earth spoken of by Mr. 
jrant, 300 yards, in connection with Item 2J9. 

Application noted. 

Q. In your particulars, there is a large quantity of rock, 13,33 <> yards for which 
pu claim J 1.20 a yard ? — Yes. 

Q. Is that a fair price for it ? — It is. 

Q. Was it worth that ? — It was. 

Q. Then you claim 11,061 yards of rock at $2 a cubic yard ?— Yes. 

Q. Is that a fair price for the work ? — It is. 

Q. Did it cost you that amount to do it ? — It did. 

Q. Then, Item No. 7,906 cubic yards, between Stations 509 and 5 ^0 at $4 a yard ? 
-Yes ; that is taking out the bottom at the station opposite our store. 

Q. Was that work done ? — Yes. 

Q. Was it occasioned by change of grade ? — Yes ; it was. 

Q. And the work was actually done ? — It was actually done clear through the 
;ut. 

By the Arbitrator : — 

Q. You are aware, of course, that Mr. Grant positively swears that there was 
10 change of grade there, and the only work was excavating side-ditches ? — I swear 
here were no side-ditches taken out in that cut at all. He has got the side-ditches 
nixed up with something else. 

Q. 1 tried to show him that he had made a change there by comparing the 
>lan that he had sent to this office with the original, and he pointed out to me that 
he original showed no change, where, as the copy he sent to me did show a 
hange, and on the strength of that he maintained there was no change, because it 
ras not marked on the original plan ? — I contend there was a change of grade there. 

By Mr. O'Boherty ;— 

Q. Items Nos. 7 and 8. You have, in these two items, charged for 016 and 1,528 
abic yards respectively of rock-work taken out ? — Yes ; one is the New Brunswick 
ut at $4 a yard, and the other is the cut back of our store. 

Q. Were those quantities taken out by reason of change of grade ? — Yes. 

Q. And the work was actually done ? — Yes; I superintended it myself. 

Q. What was that worth, taking out that bottom ?— It was worth 34 a yard. 

Q. You think it actually cost you that to take it out ? — It did 

Q. I believe it was very expensive in consequence of the water ? — It was very 
7et ; we had to get down dynamite for it. 

By the Arbitrator : — 

Q. How did you know there was a change of grade there? — Because he changed 
he stakes. 

Q. After cutting to one set of stakes, he often put down one and made you go 
eeper ? — Yes ; and I asked him what the trouble was ; he said it was the Yankee 
ron. 

Q. That is in the New Brunswick cut? — Yes ; I do not remember what he said 
'as the reason of the other change, but I took it out according to his first levels and 
e afterwards charged them ; he wanted to make an easy grade to come into the 
tation ground. 

By Mr. O'Doherty :— 
Q. You are positive that you did the work and that there was a change of grade 
lere ? — Yes, I am positive of it j and I know there were no side-ditches there, unless 
hey have been built since I left. 

By the Arbitrator : — 
Q. How is the cut drained ? — The ballast comes up so high that it forms a drain 
Iself on both sides ; the fact is, the Engineer was right in ;he first place. Then 
le made me go 18 to 20 inches deeper, after which we found out that his first levels 

83 
42 i— 6i 



42 VicLoria. Sessional Papers (No. 42) A. 1879 



were correct and his second levels were wrong; so he had to go to work ai>d fill it 
with three feet of gravel instead of eighteen inches ; when I put that question to 
Mi\ Grant the other da}', he said, on oath, that Mr. Fleming wanted three feet of 
gravel put into the cut. 

Q. You are satisfied that you never excavated any ditches in the cut? — No; I 
never cut any there ; and I am satisfied that there are none there now. 

Q. Is there any circumstance to which you can refer that forms that change of 
grade; are these cattle-guards on the crossing? — There was one in particular for 
which I procured timber to build it such a depth, according io the plan ; but when I 
came to put in the cattle-guards, I had to throw away somo timber, as the excavations 
were not so deep as we calculated on. 

By Mr, OWoherty .— 

Q. You have seen the whole of this bill of particulars ? —I have. 

Q. Was all that work done ? — Yes, it was, I am not going to swear to the quan- 
tities, as they were measured by the Engineer. 

Q. Can you swear th:it all the work was done, with the exception of being able 
to swear as to quantities ? — Yes ; and the items were all executed. 

Q. Were the ])rices charged reasonable ? — I would not do the work for any less 
than the price chai-ged there. 

By the Arbitrator : — 

Q. It appears upon the documents I have here, that when the work was taken 
oil* your hands, there was a piece of embankment not made up, and therefore a re- 
duction made by the Engineer for it ; you have stated, in reply, that although there 
was that much embankment not finished, there was an overhaul which you say was 
equivalent to it ? — Yes ; the haul was in the neighborhood of 3,000 feet, and we had 
to make up the material for the half bank at the Devil's Hole, and the stone we used 
there had to be drawn nearly three miles. 

Mr. O'Doherty claims that the suppliants should either allow for the overhaul 
or there should be no reduction made for the alf bank. 

The Arbitrator notes the application, and further deponent saith not. 

Ottawa, February 25th, 1679. 
Council for both parties been present at the examination. 

(Signed) S. KEEPER 



James Odell, re-called by the Arbitrator, was examined as follows: — 

Q. I observe that in your statement, and in your previous evidence, you have 
stated the gross quantity of excavation on Section 19 to be 455,728 cubic yards, 
^nd of rock excavation 67,975 cubic yards ; I wish to ascertain the particulars of 
that measu^'ement ? — Statement, Exhibit No. 2, is merely the summary of what was 
contained in the cross-sections, excavation and embankment. I was under the im- 
pression that a paper similar to Exhibit No. 10 was fyled before the Court, showing 
the earth excavation to be 241,835 ; then, for ditches, culverts, inlets and outlets, 
etc., 19,893 ; then, I compute borrowing for the embankment, 195,000. 

Q. Did you measure those borrow-pits ? — T measured some of them. 

Q. That is the way you make up the 455,728 cubic yards ? — Yes ; and this rock 
excavation is in addition to that. 

Q. How did you get at that 195,000 yards borrowed for embankment ? — I took 
the different embankments and the different cuttings and calculated the difference 
between them ; it was, of course, merely a computation ; I took the calculation of 
the embankment from the cross-sections that were furnished to me by the Engineer; 
I have a list of the items i^iade up here if you approve of them being handed in. 

84 



12 Victoria. Sessional Papers (No, 42 ) A. l873 



Q. Yoa have taken the quantity borrowed from calculations from the cross-sec- 
ions ? — Yes. 

Q. You have assumed that bo much would go to the right, so much to the left, 
nd the balance would require to be borrowed ? — Yes; I returned the total quantity 
f i^aterial borrowed, as calculated from the cross-sections, and then deducted from 
hat quantity what he actually did borrow from borrow-pits ; the actual amount 
(orrowed was 194,004 cubic yaixls. 

Q. This statement, as I understand, is made upon this principle: that the quantity 
f embankment having been measured by you, the excavation, as far as it would go, 
rould be used in that embankment, and what was wasted or spoiled would bo added 
othe quantity of excavation done as excavation ? — Yes. 

Q. So that wherever any material has been wasted or spoiled that is to be added 
D the excavation proper ? — Yes. 

Q. Although it was in a great measure by the measurement of the embankment 
teelf?— Yes. 

Q. TVehavo had some evidence on the question of 19,893 yards, of ditches, 
olverts, inlets and outlets ; you have measured ihem, have you not ? — Yes. 

Q. Those were outside of the line of railway ? — Some of them were, but not all. 

Q. Of course you could not tell how much of that material, if any, went into the 
mbankment itself? — I cannot; I was not present when the work was done, but what 
measured, I supposed, was not put into the embankment ; for instance, there were 
great many of them inlets and outlets of culverts, and some of those ditches were 
itside the railway boundary altogether. 

Q. And if any of that went into the embankment it should be deducted from the 
)tpl excavation ? — Of course, but that I had no means of proving as I had not seen 
le work done. 

Q. The embankment has a slope on the outside, towards the river, of two to one ? 
"I did not pleasure it, but I think the cross-sections are one and a-half to one ; the 
ib-wharfing, I understood, was to have aslope of two to one. 

Q. If any part of that crib-wharfiing comes within the line at all it will take the 
lace of the embankment ? — Yes. 

Q. Would that embankment have been allowed for in the quantity of embank- 
lent which has been returned as excavation ? — ^Yes, it would. 

Q. Then by paying for crib-wharfing on the perpendicular line, as you have cal- 
ilated it, and paying for the embankment on the asumed line of the slope, would 
3 paying twice over for the same material ? — ^Yes. 

Q. Your calculations were made that way, were they not? — I assumed the rear 
de of the crib-wharfing to be perpendicular, according to the tracing that was fur- 
ished to me; I might add, if you wish to verify the computation, that I have the 
dculations of the embankment from crib station ; if it is any object, I can furnish 
• 

Q. You mean to say, you have the particulars of all this ? — Yes. 

Q. What station was the wasting done at ? — From Station 249 to Station 258. 

Q. The greater portion of that would be wasted ? — A good deal, of that was 
asted, most of it was washed directly down into the river. 

Q. But it so happened that a portion of it formed part of the embankment, and 
at would be measured, but the greater portion of it spoiled ? — Yes. 

Q. Could you tell us what proportion of it was spoiled ? — There was more in the 
it than was necessary to form the embankment. 

Q. You measured exactly what you found on the slope? — Yes. 

Q. Was it cut accurately to the given slope of the railway? — I think if I remem- 
ir well, it was; it was very uniformly and evenly done. 

By Mr. O'Doherty :— 

Q. Mr. Grant, in his evidence, stated that it was irregular cut ? — I did not find it 
when I saw it. 

85 



42 Victoria. 



Sessional Papers (No.42) 



A. 1879 



By the Arbitrator : — 

Q. Would a etrangor know that it had been done by water ? — ^No j I should not 
have known it unless informed of it. 

Q. Did you measure the whole of the work at the New Brunswick oat as you. 
found it, OP ai it appears in the cross-sections of the completed work that they hAVO 
ftirnished me with ? — I measured it exactly as I found it. 

Q. I nrluding the whole of the rock and the whole of the clay ?— The whole, botba. 
rock and clay. 

Q. And the quantity you have given in your return includes that? — ^Yes. 

Q. Between Stations 479 and 495 have you measured any riprap ? — The onl, 
rip-rap I measured there was at Station 494, that is at the foot of the road orossin 
15 feet long. 

Q. What was the quantity? — I do not remember; It was about 33 cubic yards 
the dimensions are 75 feet long by three feet wide, by four fees high. 

And further deponent saith not. 

Item No. 6. — Eock excavation between Stations 76 and 125; change of lin. 
limited to Stations 98 and 119. 

Bock excavation as per cross-sections between Stations 98 and 104 — 5,917 cubi^ 
yards. 



Comparative Exhibit of measurements as taken from cross-sectian streets^ between 

Stations 215 and 275*5^. 





Kmbankment. 


Odell. 


G. A. Keeper. 


426 


425 


6,250 


6,9^2 


2., 577 


22,370 


17,965 


17,899 



EzcaTation. 



46,218 



47,686 



Odell. 
Eock. Earth. 

496 

3,192 16,452 
87,894 



3,192 104,842 



G. A. Keeper. 
Bock. Eartk. 
678 134 
3,696 15,760 
89,459 

4,374 105,353 



Murray vs. Begina. 

Crib-wharfing . 

Original Bill of Works, lin.ft. . , OdelFs measurements, lin.ffc 
79-00— 83-00 ^. 400 ft.) 79-00— S3-00 400ft. 



87-00— 91-00 4'iO »* 

102-00-106-00 400 " 

110-00- iia-OO 300 " 

249-00-268-00 1,900 " 

308-00~317-00 900 " 

332-00—335-00 300 " 

340-00-355-00 1,500 " 



fcY-OO— 91-00 350 " 



247-00— 252-30 530 " 

259-00—269-30 1,030" 

305-00-317-90 1,290" 

329-50—334-00 450 " 

339-50—355-50 1,600" 



Total 6,100 l.ft. 

49,000 c.y . 



80-00- 

87-50- 

247-00- 

258-30- 



Bevised bill. — P. Grant. 

- 83-50 350 ft. 

- 91-10 360 " 

■268-50 1,020 " 259 

86 



79 

87 
J247' 



00- 
00- 
00- 
00- 



Total 5,650 l.ft. 

46,207 cy. 

Odell. 

- 83-00 400 ft^ 

- 91-00 350 " 

-252-30 530 « 

269-30 1,030 " 



12 Victona. 



Sessional Papers (No.42) 



A. 1879 



m-00— SW-SO 1,050 ft.|305- 00-317 -90 1,290 ft. 

300.00— 334-90 490 " '329 -SO— 334-00 450" 

340.00—355-00 1,500 " 339-50—335-50 1,600 « 



,\ 



Total 5,300 l.ft. 

29,650 c.yj 

See Plant Profile. 

256-00—269-00 
305-00— 311-00 



Total 5,650 Lft. 

46,207 c.y 

1,300 lin. ft. 
1,200 



2,500 
2,070 

430 
5,300 

5,730 

Memorandum of Crib-wharfing, 

Original. Rerised. 

Length 6,100 lin. ft. 5,300 lin. ft. 



Quantity 40,000 o. yds. 

Area 1T7.29 ft. av. 



27,650 c. yds. 
151 sq^. ft. 



Odell. 

5,650 lin. ft. 
46,207 c. vds. 
221 sq^ft. 



Note. — ^There is a pi-obable error of 430 ft. omitted by Grant at Station 258 — 
68, and at 307 — 317; that added, the actual length, according to Grant, will bo 
,730 ft. 

The evidence on this item is very conflicting. Grant has given no detailed mea- 
irements. If he made them, they cannot be found ; that is a fatal omission. On the 
ther hand, O'dell tells us plainly that he assumed the work to be according to plan 
tmlshed, which, it appears was not strictly followed. The rear line is not 
3rtical in all plans, nor is the height 4 to 5 ft. above high-water, as per plan, but, 
ily one foot. The true quantity must, therefore, be less tnan O'Dell's measurement. 
^ It is now impossible to uncover this work for re-measurement. Grant says Bell 

measured it, and agrees with 
him. Moreover, Grant says^ 
.,»^^ cribs were filled with rock from 

the rock-cuts. That being the 
case, the quantity of excavation 
must be increased by as much 
as the stones measure outside 
the slope of the bank. 

The crib-work was fitted to the bank as here shown. Correct measurement of 
lis should have been made and kept for the final estimate. Now, it cannot be cor- 
ctly ascertained ; it can be done only by approximation. 

18th Februaiy, 1879. 

Marcus Smith directed to assume an area of 132 square feet for the work, but 
at could not be complied with. 

JBLLETT. 

Mark, — I have since found a calculation of the crib-wharfing as actually built by 
all, making the total quantity 53,041 cubic feet. 

87 




42 Victoria 



StiBsional Papen (Na42) 



EXdAVATION— 216 to 275. 



Suilon. 








Onbic TkTdB. 






neights. 


TabnUr 
Number. 


Length. 




RamarkB, 








From. 


To. 








Bock. 


Earth. 




m 


216 
+50 


2 


3 



89 
89 


100 
60 




S9 

46 












134 




31T+60 


210 
220 


3 
6 


B 


16T 
297 
297 


50 
100 
100 


84 

297 
397 












678 




331 


232 
S33 
234 

160 
336 
3SE-M0 


1 
9 
12 
U 
U 

22 
3S 
23 
14 


B 
12 
U 
14 
10 
22 
32 
22 
14 




B76 
1,472 
2;000 
3,230 

933 
1,792 


100 

100 
100 

ao 

40 
40 
60 
100 
BO 
60 




676 
1,4T3 
3,0Cfl 
1338 
87S 
T17 
3,6B» 

^648 
486 










Z3S 


EEE 






:■::::::::: 






IS, 760 




1^4^ 


334 

^■^" 
237 



6 
6 
3 
U 
U 
U 
13 


6 

6 

\i 

13 



211 
431 
297 
732 
1,332 
1,323 
1,269 
681 


60 

eo 

40 
40 
60 
100 

60 
30 


105 
369 
119 
289 
793 
1,333 
63G 
174 

9,696 


'ZZ'ZZ'Z 






3S0 
361 
3G3 
253 
2M 
SGG 
266 
367 
268 
+60 



18 
28 
29 
48 
43 
43 
43 
37 
33 


28 

g 

48 
43 
43 
42 
37 
23 



2,593 
«,e37 

15,220 
13,776 
1^498 
21,166 
7,636 
1,916 


60 
100 
100 

leo 

100 
100 
100 
100 
100 

so 




1,296 
- 8,637 
8,835 
11,639 
16,220 
13,776 
13,498 
13,165 





















































































89,469 





Sessional Papers (No. 42) 



A. 1879 



EMBANKMENT— 216 lo 276-5(l. 



3l>tiOD. 


Heights. 


rabultir 
Nnmber. 




Cubic Yards. 


Kemarki. 




To. 




Boek. 


Eutb. 




3ie 

+50 
318 

231 
131 
333 
314 

2S5 

326 
337 
338 
32B 
330 
231 
233 
333 
234 

238 
339 
340 
341 
243 
243 
344 
349 

+50 
246 
347 
348 
149 
ISO 

iei 

352 


1 
1 

3 

3 



6 
I 

S 
8 
S 
S 
5 
3 
2 
4 
5 
7 
2 
1 

8 

14 

is 

13 
14 
13 
13 

10 
9 

13 

10 
8 
8 

10 


1 

i 
3 

I 

6 
T 
3 
6 
B 
S 
8 
S 
3 
3 
4 

7 
1 

1 
3 

.! 

15 

14 
13 
13 
13 

9 
13 

10 
8 


10 
3 


68 
IW 
389 
193 

70 

304 
680 
261 
400 
T!5 
859 
859 
648 
341 
1«3 
341 
396 
680 
407 
107 
107 

370 
1,381 
3,081 
3,972 
1,863 
1,SS3 
l|757 
1,757 
1,463 
1,100 
1,278 
1,366 
1,019 

937 
1,100 

60S 


100 
60 
40 

60 
60 

100 

100 
100 
100 

100 
100 
100 
100 

100 
100 
100 
100 
100 
60 
40 

30 
100 
100 
100 
100 
100 
100 
100 
60 
60 
100 

100 
100 
100 
100 




118 
108 
90 
39 












43B 

304 
680 
461 
400 
715 
859 
859 
648 
343 
193 
241 
396 
980 
407 
161 
143 












":.;:"!""" 


















::::';:::::;: 






::;:■:;:.:: 
















■> 


6,993 

74 
1,381 
2,081 
1,973 
1,SS3 
1,863 
1,717 
1,707 

731 

960 
1,378 
1,366 
1,019 

937 
1,100 

608 




























































30,337 
3,033 






S2,3TO 





43 Victoria. 




Seuioiua 


Papen (No^ 


2.) 


A. 18' 




EMBANKMENT- 


-216 TO 215&Q—Gontinwd. 




SUUon. 


Heigliti. 


Tabular 

Number. 


Cubic Yard). 


R«mark(. 


from. 


To. 


Rock. Earth. 




208 
369 

361 
263 
J«3 
364 


1 

13 
10 


4 
3 
3 
6 




4 


341 
656 






., 






100 
60 
60 
100 
100 
100 
100 
100 
100 
100 
100 
100 
100 
100 
100 
100 
100 

'SS 

100 
100 
100 
100 
100 
100 




666 

686 
8!8 
1,374 

1;1S 

1,374 

1,187 

1,178 

1,366 

1,100 

937 

648 

463 

4G3 

ES6 

896 

39< 

78 






1 


656 

1T4 
488 
366 
174 
18T 
378 
366 
100 
937 














::;:E;:::: 


















3GS 
369 
3TO 
311 
313 
3T3 
3T4 
875 
+M 

99 
100 
101 
103 
103 
104 








463 
453 
396 
396 

3»a 

I6S 




















168 
397 
3G3 

3se 

4C8 
84 




9S 


16,371 

l!627 

17,898 






3 2ST 

3 3B3 
e 386 

4 4^ 
161 

































l,5»6 





•2 Victor] 


ia. 


Sessional Papers (No. 42.) 




A. 1879 


453 
454 


00 
20X2 
20X2 
28x2-75 
27X2-5 
44X45 
48X45 
49X5 
60X6 
49X5 
73X6 
67X5 
55X4-6 
50X4 
40X3J 

0-0 


40 

40 

77 

67 

198 

216 

245 

360 

245 

438 

336 

247 

200 

140 

00 


i)* 

58-5 

72 

132-6 
207 
230*5 
302*6 
3026 
341-6 
386*6 
291 
223 6 
170 


100 

100 

76 

26 

100 

100 

100 

46 

56 

100 

70 

30 

100 

100 

100 


1,330 

4,000 

4,388 

1,800 • 
13,250 
20,700 
23,050 
13,612 
16,637 
34,150 
27,055 

8,730 
22,360 
17,0C0 

4,660 




455 

+76 
456 
457 






458 
459 

+46 
460 
461 

+70 
462 
463 






••••*•• •• 


464 




465 












212,712 






70,904 






7,646 





Statioii. 



463 # 


462 # 


461 X 


460 


459 


458 


457 $ 


4^6 


455 


454 


453 


452 


451 



Grade in original Profile. 



Grade as per finished and 
secared. 



14600 
146 00 
14600 
146*00 
145-90 
145-80 
145-70 
146-60 
145-50 
145-40 
145-30 
145-20 
145']0 
145-00 



14519 
14532 
145 36 
14546 
145 58 
145-71 
145-84 

145 97 
14606 
14631 

146 44 
146-67 



-0 81 
^0 68 
—0 64 
—0-55 
—0*32 
—009 
+0 14 
+0 37 
+0 56 
H-0 91 
+114 
+1-37 



91 



42 Victoria, 



Sesdonal Papers (Mo. 42) 



Murray vs. Eeqina. 



Notes on the Evidence taken in the Exchequer Court. 
Plaintifif's Case — Bobert Peter Mitchell. 



4th Sept., 1870.— Grant and Fleming 
visit Diorite quarry. I told him to proceed, 
it would get better as he advances. After 
one month's work refused to go on, but 
Grant said he must continue. Continued 
8 months; till March or April, 1871 ; then 
abandoned the quarry, though ordered to 
continue. All this previous to 2nd con- 
tract. Euled out of Court. 

Item 24, $12,187.80, disallowed. Item 
24 substituted $1,637.20. 

A. 34. Claims $5,000 damages for non- 
payment of pi-ogress estimates in time. 
Plant seized, stores broken open, &c, went 
700 miles to see Mr. Fleming. 

A. 37. Delayed by bridge 6 months. 
Bad foundations ; all had to be piled ; it 
took a year ; Murphy's work. 

A. 40. Delayed by want of borrow-pits 
1 year ; by first-class masonry in place 
of second; by rojEid diversions, their 
chiel causes of delay, for 18 months. 

3,000 cubic yards masonry turned from 
second to first-class. 

Cross-examined. 

A. 41. Had chief management of the 
works throughout, his partner assist- 
ing. 

A. 45. He bought out Tuck. Had 
nothing to do with the work previously. 
Tuck did no work, not a stroke. A. 46. 

A. 49. Began work in August 1870. 

A. Ik, Change of line at 455-465 caused 
change of road l,*::00 feet. 

A. 73. Materialfrora wedge of rock was 
pitched over bank and wasted, yet it was 
wanted. 

A. 75. Wrong levels given at 460 x 40 
to end of cutting. The mistake not found 
out until whole cut was out all to 100 
feet. It was too high. Grant found out 
the mistake, altered the grade, and told 
him of it; blamed it on the iron bridge. 

A. 89. Admits the changes ; sometimes 
reduced the work. 

A. 95. 3,060 cubic yards first class ma- 
sonry required by verbal orders of Engi- 
neer. 

.A. 98. 4 culverts built dry. 2nd day. — 
All the rest laid in cement. 

A. 105. Item 34 — Cutting nearly com- 
plete where this slope was taken off. 



92 



Change made in summer of 1871 
increased from 4 to 1 to ^ to 1. 

A. 112. Difficulties of constr 
caused delay on bridge. It >vas 
own hands for 2 years; then turne 
to Murphy, who could not complete 
sooner. 

A. 117. Crib-wharfing was com 
according to plan (O). 

A. 120. Wprk at 260-270 done s 
ing to directions of Engineer and 1 
tor ; ^' ice smashed it up." 

A. 120 to A. 134. Discussion 
claims 32-33. 

A. 137. Told Grant before wha 
built that rock must be taken awa 
was done after he left the works 
Government. 

A. 142. Line shifted 13 ^QQi towai 
river. 

A. 144. Work taken off his hands 
1874. Schreiberand Brydges were 
fied with it. 

A. 145. Money not paid till Jani; 
February — 4 or 5 months after woi 
accepted. 

-|-. 16. Jellet had given the wrong 
in N. B. cubic feet, 6 feet too high, 
wharfing 12, 14, 16 feet deep; '' . 
Hole'' the deepest; the rest will a' 
12 feet; measured it often. 

-{-. 17. Eip-rap 12, 5, 6 feet deep 

Recalled, 

C. 51. Inspector ordered first cla 
Ronry. It is better than any w< 
Parliament Buildings. Fleming e: 
ed it with his pen-knife. 

Jambs Odbll, C.E. 
A. 149. Measured work in Oct., 
and again in May, 1876. Kesult o; 
surement : 

455,728 cubic yards excavation et 
81,381 " '' Yi 

1,346 feet " d 

10,772 " catch water drains 
1 1,987 cubic yards rip-rap. 
42,779 " crib-wharfing 

That was all he measured. 

A. 153. Considerable increase o 
in cuts both sides of the Eestigouch( 
hill was steep. 



^toria. 



Sessional Papers (No. 42.) 



A. 1879 



4, 155, 156, 157, 158, 159, 160 gives 
lars of his measurementfi'. 

"P" shows all the rip-rap on the 
;ection ; " Q " all the crib wharfing 
ng to his own measareoients. 

Think Mitchell's price for over- 
; fair. Examined B. 7. 
J. Eelative quantities of rock and 
an best be determined by monthly 
fi estimates. Had no proof about 
3 of location or grade. 
►. " R " traces of original sections 
it Mr. Grant's office. 
». Cross-sectioned the whole work; 
he originals in most cases to agree 
s levels; plotted his on the origi- 

l. Employed 6 weeks at this. 
lied +. Examined as to manner 
king the measurements. 
Measured nothing that had been out 
ast ; merely work that had been 
nowhere that the steam shovel had 
t work; confined himself to the 
ompleted his work 13th July ; com- 
l 4lh June. 

1. Measured width of crib-wharfing 
and distance from top to toe of 
)n water, and then the height with 
b1. All the rear part covered by 
cment not measured, but assumed 
3Cording to plan ; rip- rap the same. 
3. Found the toe of the slope by 
jctions. 

aen Delaney Oakes, B. 170. 

'2. In Oct., 1874, Grant gave him 

V 

I. 



to Brydges saying work was 



4. N.B. cut Stations 465 and 455 
1 further into the bank. 
6. Pile of rock outside of cutting 
d by Smith's orders ; Government 
If of it, that is all ; 1,218 cubic 
measured by Mitchell (O'Connor 
i figures to 12,018 cubic yards, a 
error). Eock removed on account 
\ In work, $1.50 a yard ; claims 
not all taken out on account of 
It was for that reason stopped by 
>er. 

f9. Another change at 480-510; 
30 feet towards river for 3,000 feet. 

0. Change at 523 to bO-inch grade, 
3 Upper Flat. 

1. From 80 to 122, line shoved 
►untain — into rock. 



93 



B. 182. Those are all the chaages on 
his end —the eastern end of line. 

B. 183. Overhaul, 495 to 516 ; dump at 
Station 500 — 516 to 495, worth Ic. a yard; 
cost more like 3c. on the wooden rails. 

B. 186. Ic. a yard for every 100 ft. of 
over-haul. 

B. 187. Ic. a yard for every yard for 
every 100 feet from borrowing-pit for the 
whole distance. 

C. 1. 2000 feet haul, 20c , rest 4c. 
The Judge decides "Xobody has a 

right to make a bargain with Intercolon- 
ial Eailway.'* "-Will not take evidence 
of a bargain or promise." Engineer's 
dii'ections may be taken ; nothing more. 

C. 6. Grant said he would rather pay for 
the haul than buy a borrow-pit. 

C. 7. It cost three times as much as they 
charge for it, because of the wooden rails. 

C. 8. Brydges got a borrow-pit ; Grant 
and Bell could not. After 8 months one 
was got. 

C. 9. Condition of borrow-pit at Eraser's; 
it did not supply enough material. 

C. 15. Want of borrow-pit caused delay 
and expenses. 

C. 17. Masonry are first class, except 4 
culverts ; men obliged to make them so. 

C. 19. Furnished McKenzie with copy 
of Odell's measurements a month after 
they were made. 

C. 20. Change of location at 76-125. 
Eock worth $1.50 c. yd. 

C. 22. Piling protection necessary by 
change of location 600 ft piling. Eip-rap 
per 2,700 yds. proves the bill in all 
$7,825.80 ; says charges are reasonable. 

C. 27. Trouble with men for want of 
money to pay them. Stevenson went 
down to pay. 

C. 38. Glad to get Grant's letter accept- 
ing his work. 

C. 42. McKenzie not inclined to settle. 

C. 50. The end. 

Alexander McDonald, B. 103. 

After he had finished his work, saw 
men reducing grade,changing it, two years 
after some 2 or 3 feet deeper ; worth $4. 
a yard. 

B. 105. 2 culverts 2nd class, all the 
rest 1st class ; by order of Engineer and 
Inspector. Difference in cost, 7 dollars. 

B. 108. Stepped some culverts at a cost 
equal to masonry; would prefer to do 
masonry. 



42 Victoria, 



Sesnional Papers (No. 42.) 



A. 1879 



B. 110. Never saw the Engineer 8 make 
iinal measurement ; none made till made 
by Odell. 

B. 121. No final settlement between him 
and Mitchell and Oakes. It is still in 
dispute. 

Recalled — B. loS-lGQ. Nothing material. 

Recalled again, D. I. 700 feet wharf- 
ing, 249-259 ; 1,000 feet wharfing, 259-270, 
all done according to plan '* O." Case 
closed. 

John E. Murray, B. 30. 

His partner, Boggs, died 27th or 29th 
March, 1873. 

B. 1 M. Assisted Mitchell and Oakes in 
buying out Tuck and supplied them. 

B. 36. Delay of some weeks in getting 
estimates. Followed Fleming from 
St.Andrews to Halifax ; thence to Ottawa, 
when he got Supplementary Estimate of 
$7,000 ; men almost riotous meanwhile \ 
had not been paid for two months. 

B. 43. Asked for final report, but 
never received it; Schreiber & Brydges' 
report read once to time, but no copy 
given. Schreiber said they were entitled 
to $16,000, but he would not accept it. 

B. 89. This is the 12th time he has been 
in Ottawa on this business. 

B. 90, 98. McKenzie acknowledged his 
claim to be a good one, and told him his 



work should be re-measured ; this was 
Dec. 1875. 
B. 99, the end. 

Grey or McKay, B.122, 167. 

B. 122. Worked as foreman 8 or ^ 
months in Diorite Quarry ; commenced in 
1870. 

B. 124. After, in 1871, had average of 
9 teams daily drawing a-^ray stone for 4 
or 5 weeks. 

B. 125. The stone not allowed to be 
used, not even for backing ; that was after 
they had been hauled to the place. Then 
they were condemned and had to be 
hauled away; thence over the bank- 
wasted. 

B. 127. Saw Grant and Schreiber at the 
quarry; they thought the stone would 
be good. 

B. 128. Was ordered to make the 
culverts first class masonry. 

B. 140. Lowered grade 2 feet. 

B. 145. Diorite stone fit lor nothing. 

B. 146. Made first class work. 

B. 148. Lowrie directed J-in. joint**. 

B. 149. Does not say this, but that he 
must do his work well. 

B. 157. Grade lowered at N. B. bridge. 
It furnished building stone ; was used as a 
quarry. 



X 

I 

is 






The Defence, 

CoUingwood Schreiber, C.B. B. 72. could not be known until information 
B. 74. Eeported from 1875 by order of from the office ; by those who saw work 

taken out on the Quebec side the same 
difficulty. 

E. 92. Measurement unreliable by rea- 
son of ballast train at Klock's work. H* 
could not find •* toe '* of slope. 

E. 93. N. B. cut nearly whole right of 
way taken out for ballast, 1875. Mr. 
Grant a careful man and accurate ; like- 
wise Mr. Jellett ; " B. F.*' made of the 
Pokes application. 



Minister as to the effect of changes ; in- 
structed Grant. Grant's report *• B F," 
"Schreiber B 9." According to this the 
changes have reduced the contract by 

E. 77 E.80 

$5,185 finds that contractors are over 
paid 814,178. 

B. 81 . Work not done 8,135 yards earth ; 
$2,440, deducted for work done by Gov- 
ernment; this a reasonable sum for it. 

E. 82. $92 for road, 6,900 yards i-ock ; 
tusk of rock extra ; allowed $7,682 for 
these. 

B. 85. Written agreement that $1,200 
be deducted for pr. superstructure not 
built ; that was deducted from sum. 

E. 88. Could not measure up work in 
6 days ; no one could accurately in that judgement, 
time; it would require six weeks. B. 105. Might measure disputed parte 

B. 89. Murphy's cutting alone at Eesti- in the time, but not the whole work, 
goucho Bridge division of rock and earth B. 108. Pockets in rock at Murphy's. 



Cross-eocamined. 

B. 96. Fancy Grant is competent, knows 
very little about him ; consider his own 
prices in schedule fair, using his own 



ictoria. 



Sessional Papers (No. 42,) 



A. 1879 



09. Cost 1 cent a 100 feet, for 200 
I of a cent according to distance 
lul. "M." add "haul over 1,600;" 
5aid for, no overhaul from borrow- 

.15. Contractor may be compelled 
en cut till haul comes to 1,600 feet 
)r that we must be paid. Earth 
r any other material must be taken 
thin this distance. 



C. J. Brydges. 

. As Commissioner ceased to act 
thereafter under orders of Minister 
5 Works as General Superintendent 
nment Eailway, made hia report 
."on these of Grant & Schreiber ; 
id the whole of Schroiber's first 
n, resulting in a deduction of $5,185 
jontract. 
8. Total amount paid contra^ 

$293,344.81 

. Amt. due contractors 281,029.60 



Overpaid $12,315.21 

3e would have been greater if the 

' had been charged as he ought to 

lone. 

1. Eeport of Sept., 1875, adopted by 

;er verbally. 

7. Delay for want of borrow-pit 

ted. 

!3. Contract practically finished in 

1874, bat was not accepted until the 

spring. The Eestigouche Bridge 

)d spring, 1875. 

5. No final certificate was ever given 

on of penalty never discussed; 

r pressed, nor abandoned ; contract 

)ing completed before bridge was 

id, Government suifered no incon- 

ice. 

Peter Grant D. 7 to E. 71. 

i on the work from beginning to 

rom the survey to the ballasting ; 

' attend to everything ; superintend- 

)rk under the direction of Fleming, 

.8 Smith and Boll. 

.3. All changes of grade were made 

mant's request. 

4. On the whole there was a saving 

)-wharfing ; also in masonry. 



95 



D. 18. Believes his measurement cor- 
rect. 

D. 24. Odell could not make correct 
measurement in six days; would take two 
months ; the cross-sections could bo relied 
on, except at Man's Hill, when water 
sluices were used to wash away the gravel 
Station 250 to Station 260 (D. 26). Here 
cross-section would not afford the informa- 
tion ; this would be excluded in excavation. 

D. 27. Still he might plot his levels on 
the section and get the quantity (this con- 
tradicts what he had said). '*A. Y.'^ 
report on claim, 27th Mar., 1875. 

D. 35. '* B. F," final measurement, 3rd 
May, 1875. His measure correct to the 
best of his knowledge and belief ; made 
with the greatest possible care. 

D. 36. Masonry is cut with chisel. " It 
is really first class masonry." From the 
nature of the stone (metamorphis slate) it 
had to be made so. 

Cross-examined. 

D. 48. Alterations first suggested by 
him, and then contractors applied for 
them. 

D. 82. The 4 second class culverts, 
rather thii'd class, were dry masonry, and 
being unimportant, were not taken up, 
they were the first brick in 1870 or 1871 ; 
in 1871. 

D. 83. All under 2nd contract was first 
class . 

E. 27. Contractors schedule rates would 
not pay. 

E. 38. Eoad diversion is extra ; it was 
omitted on original plan laid bef )re con- 
tractors ; no change of plan ; simply an 
omission. 

E. 56. Paid no attention to plan " O 
of crib-work. "Each piece of crib-work 
was measured as it was put in;" cribs 
were fitted to the groucd. If steep it was 
not cut away; allowed an average see 
tional area of 14,009 feet for it. 

E. 62. 5,300 lineal feet crib-wharfing 
in all against 6,100 by biU of work. 
29,650 cubic yards in all against 40,000 
by bill of work. 

Memorandum : 6800 x i4o 27,481 cubic 
yards, instead of 29,650 as above, and 
with area 140 square feet, it would require 
7,714 lineal feet of cubic wharfing to make 
40,000 cubic yards. 



42 Victoria. 



Sessional Papers (No. 42) 



A. 18! 



E. C*7. Not clear as to lieigut or width ; 
measured lengt h only ; depended on Jellett 
for the rest. 

E. 71. Ends his evidence. 

Note, — The greater part of the evid- 
ence is taken up with proper estimates of 
no use to me for final measurement ; 
besides it is very contradictory. 

Peter Grant, recalled. F. 29. 

Many pages wasted over progress 
estimates no use to one. 

S', 43. Eip-rap at Clarke's Brook and 
Gilmors* Bridge never returned to contrac- 
tor: omitted in the measurement. 

E. 47. Did not make actual measure- 
ments on the ground. 

F. 49. Contractor complained that En- 
gineer left him to direction of subordin- 
ates ; to incompetent persons. 

F. 76. Contractors had a right to an 
increase ; so he thought for 3 years, per- 
haps erroneously. In 1874 found they 
were to be deducted. Had taken no ac- 
count of dimensions, only to inform Mr. 
Fleming as to price in progress estimates, 
appropriately. 

F. 78. Change of rate at Eestigouche 
Bridge about 300 feet for 18, inclusive : 



ran 300 feet into Eock Cut Bridge lower 
one foot, as well as embankment chan 
confined to width of road, in 1871. 

John Jellett. 

G. 27. Measured whole work before 1 
left. 

G. 34. Not a final measurement; n 
even a general measurement. 

G. 73. All to this relates to progre 
estimates, and of no importance. 

Crib wharfing was measured by hii 
from time to time, but not ajl of it. M 
Marcus Smith directed them to assume i 
area of 132 square feet for it j Grant c 
rected him to do so, and so he did ; t!i 
rule was followed throughout. He measu 
ed the greater portion of the crib-whai 
ing, and always took 132 feet area for i 
never more was confined to that ; so d 
not take the dimensions. His is not i 
actual measurement. G. 83. 

G. 93. Correct measurement cannot 1 
made when snow is on the ground. 

r 

His Lordship. 

D.H. " There must be some means < 
reaching a final certificate in prop 
form, and it ought to be given." 



IN THE EXCHEQUEE COUET OF CANADA. 

In the matter of the Petition of Bight of John E, Murray — Particulars of Extras of 

Supplianfs Olaim, 

No. 4. — 15,194 cubic yards of earth, at SO cts. per yaini 4,558 20 

■^o. 5.-13,335 cubic yards of rock, at $1.25 per yard 16,668 75 

11,061 " " $2.00 " 22,122 00 

No. 7.— 916 " " between Stations 509 and 

520, at $4 per yard 3,664 00 

No. 8. — 1,528 cubic yards of rock, between Stations 463 and 

465, at $4 peryai-d 6,112 00 

The two last mentioned items were taken up bottoms ; no 
face and very wet. 

No. 14 — 2,779 yards of crib-wharfing, at $2.50 per yard 6,947 50 

No. 12.-5,178 " rip-rap, at $1.50 per yard 7,767 00 

No. 15. — 3,200 ** first-class mabonry, changed from 

second- to first-class, at $7 per yard 22,400 00 

No. 18. — 4,715 yards of excavation and foundation, at $1 per 

yard 4,715 00 

No. 2i3. — To blasting and removing rock from Stations 453 to 

465—12,018 cubic yards at $1.25 15,022 50 

96 



42 Victoria. Sesaiona^ Papers (No.42> A. 1879 



This work was ordered by the Engineer in consequence of 
the cut filling up with snow; afterwards the order was 
countermanded by Mr. Fleming or Mr. Schreiber. This 
was partially paid for^s the rock progressed, but after- 
wards deducted from our warrant. 
No. 24. — Damage sustained and cost of work in taking and 
hauling, and afterwards disposing of stone at and from 
Diorite Quarry, in 1872, which stone was afterwaixls con- 
demned by Government Inspector and could not be used, 
as follows : 

Paid Chessie's bnd damage.... 75 00 

Scowing stone ; labor, 18 days at SI. 40 ; for 6 days at 

$2.50 ; team and scow, 6 days, at $7.00 82 20 

Hauling stone from scow landing 20 00 

Hauling stone by teams from quarry, 9 teams for 5 

weeks— 270 days at $4.00 1,080 00 

Loading stone for teams, 120 days at $1.50 180 00 

Removing stone from culverts 200 00 

No.^25. — To cash paid D. Fraser for borrow-pit at Mitchell 

House 200 03 

To labor on station grounds opposite Station 506, as per 

Engineer's orders 92 10 

No. 27.— To overhaul from Stati6n 516 to 495: 

Earth, cubic yards 14,996 

Add 80 per cent, for soft bottom 4,498 

" 10 " subsidence 1,499 

Cubic yards 20,993 at 20c. 4,198 60 

We are entitled to borrow-pit, according to contract, when 
the maximum haul exceeds 1,600 feet; and as no such 
borrow-pit was provided for this portion of the bank, we 
had to haul as above stated. 
No. 28. — To piling protection to Eraser's Flat and embank- 
ment. Station 485 : 

6,000 feet piling, at 40c $2,400 00 

600 " ring piles, at 50c 300 00 

1,200 " walling, at 40c 480 00 

900 " cross-bracing, at 40c 360 00 

840 lbs. wrought iron bolts, at 10c 84 00 

506 cubic yards earth excavation, per plan, 

at 30c 151 80 

2,700 cubic yards rock (put on as rip-rap;, 

at $1.50 4,050 00 

7.825 80 

No. 29. — To road (highway) diversion at Station 

114; 8j2 cubic yards rock, at $1.50 1,218 00 

No. 32. — To building crib wharfing between Stations 248 and 
253, 500 cubic yards at $2.50, which work was made 
necessary by change of location of line at this place, and 
which was afterwards washed away (not included in 1st 

page) 1,250 OO 

The crib wharfing in above item was lost in consequence of 
a point of rock on the opposite side of the MetapidiaEiver 
(opposite Station 254) (ice). 
We often applied to the Engineer to have it removed, and 
told him it was impossible for our crib-wharfing to stand 
the ice which comes down in fall and spring. He said he 

91 
42 i- 7 



42 Ytctoria. Sesdonal Papers (No.42L) A. 18 



applied to get it done, bnt could not ; but as soon as the sec- 
tion was completed, the Government pat on men and had 
it removed for the protection of the crib-wharfing. 

No. 34. — ^To fencing station ground with a better class of fence, 
and also removing fence ap the line after being built by 
Mr. Schreiber*s orders. He said it was too close to the 
line, but owing to the river there was no other place to 
put it. We had to pay Fraser a higher price because of 
' the superior fence round station ground 60 00 

No. 35. — To extra expense in sloping rock-cut between Stations 

453 and 465 on 5,000 cubic yards at $1.00 5,000 00 

These slopes were taken out at J to 1 slope, and when the cut 
was nearly completed we wera compelled to take four feet 
more slope off at great disadvantage. We had to use scal- 
ing ladders and suspend staying by ropes, &c. 

No. 36. — To loss sustained in not getting a borrow pit between 
Stations 480 and 506 ; the work was kept back for over 
twelve months for the want of it. We could not get Mr. 
Bell or Mr. Grant to agree with Mr. Daniel Fraser, the 
owner of the land. When Mr. Brydges came on the sec- 
tion he gave orders that we should have the borrow-pit, 
but even then we had to make a private bargain with 
Fraser for the land. Our loss at the lowest was 2,000 00 

No. 37. — To soft bottom not included in cross section because 
of change of location. Earth borrowed from Metapedia 
of which engineers took no account. Station 410 to 420 ; 
Station 495 to 502 ; Station 148 to 170, 19,000 cubic yards 
at 30 cents 5,850 GO 

No. 38. — ^To loss sustained in not receiving payments on war- 
rants promptly in the years 1873 and 1874. 

Atrne time Mr. Murray of our firm had to travel from Meta- 
pedia to St. Andrews, N. B., thence to Halifax, and thenca 
to Ottawa, where he received a supplementary warrant ; 
owing to non-payment the men would not work, and did 
as they pleased, a great many left altogether ; this matter 
was brought to the notice of the Engineer at the time, our 
loss was at least about five thousand dollars 5,000 00 

$144,308 55 
3,428 cubic yards wharfing from Station 247 to Station 

252 at $2.50 per yard (omitted in original statement) 8,570 00 

$152,878 55 
Hoad divei*sion 1,200 feet, Station 460, omitted in above 

bill 1,500 00 



$154,378 55 



IN THE EXCHEQUER COUET. 

Murray vs. The Queen. 

Expenses ofK. P. Mitchell — Fare to Ottawa and return 53 00 
Time coming to Ottawa and returning, 6 days, at $1 

(legal allowance) 6 00 

Board 12 00 



58 



m oo 



i Victoria. Sessional Tapers (No 42.) A. 18/9 



Expenses of Mr. Odell — Fare to Ottawa and return in- 
cluding Pullman.. 

Time in Ottawa waiting for trial, 25 days, at $6 

Board, 25 days, $2 



Total 

Memorandum of costs allowed to petitioners — 

E. P.Mitchell 

James Odell 

Counsels 



106 

150 

50 


00 
00 
00 


$306 00 


$377 

$ 71 
SOU* 
500 


00 

00 
00 
00 



$377 00 



Department op Justice, 

Ottawa, 15th April, 1879. 

Murray vs, Regina. 

Sir, — I find it laid down in Morse on arbitration and award, that "An agreement 
naply that the award shall be final and conclusive is powerless to take away the 
ght to assail its validity in the ordinary way and upon the ordinary grounds." 

" The awards are commonly used to e:j^pre3s the intention of the parties to be 
)und by the award ; but they are not of greater force." 

The submission in this case contains the usual clause that the award is to be 
ial and nothing more ; therefore, the case comes within the rule above defined. 

As you acted as counsel for the crown in the case, and are familiar with the pro- 
edings before the arbitrator and the evidence, I have the honor to request your 
)inion upon the award and whether it could be successfully moved against. 

I am, Sir, 

Your obedient servant, 

(Signed) Z. A. LASH, 

DM.J. 
. F. McIntyre, Esq., 
Ottawa. 



Ottawa, 26th April, 1879. 
Murray rs. Eegina. 

Dear Sir, — In reply to your letter requesting my opinion upon the awai'd of 
r. Samuel Keefer in this matter, and whether it could be successfully moved against. 

I beg to say that without considering any technical difficulties in consequence of 
le matter referred being a claim against Her Majesty, but considering the award as 
it had been in the case of a claim between a subject and a subject, I am of 
minion that any application to set aside the award would be unsuccessful. 

The proceedings before the arbitrators were regularly conducted ; the award 
gnlarly made, and the evidence before him, in my opinion, fully warranted his 



3dincr. 



I have the honor to be. Sir, 

Your obedient servant. 



(Signed) A. F. McINTYKE. 

-A.. Lash, Esq., 
Deputy Minister Justice, 
Ottawa. 

99 



42 Victoria. 



Sessional Papers ( No 4 "3, ) 



A. 187C 



Ottawa, 3rd May, 1879. 



Murray vs. Eegina. 



Sir, — You have asked my opinion as to the correctness of the award made bj 
the Arb"trator in this case 

The evidence, which was reported in short-hand, is exceedingly lengthy. I have 
found it impossible in the time at ray disposal to peruse and consider it. I doubt 
ray ability to properly understand it, or to form an opinion from it as to the correct- 
ness, or otherwise, of the Arbitrator's finding, as from the nature of the case, no one 
but an Engineer, or person having the knowledge of an Engineer, could properly deal 
with it. 

I have, however, read Mr. Keefer's statement, giving the particulars, &c., of his 
award. I think he has dealt with the case upon proper principles, and with the 
exception of one item referred to below, the amount he has allowed to or deducted 
from the petitioners claim are, he states, found to be the result of changes of grade 
or location, or had been admitted by the Government Engineer to be extras. This i8 
'exactly what the Court ordered the Registrar to do, and what I fear the Registrar, not 
having the necessary technical knowledge, could not himself have properly done 
without being assisted by an engineer. 

As Mr. Mclntyre, the counsel employed by the Crown, had attended both the 
trial before Judge Fournier and the reference before the Arbitrator, and was there- 
fore familiar with all the evidence, I wrote him the letter, of which copy is enclosed, 
asking his opinion on the award. I enclose copy of his reply, by which you will Bee 
that he thinks the evidence fully warranted the finding. 

The item I referred to above is No. 36 in Mr. Keefer's statement, consisting of 
$1,000 allowed for loss sustained by the contractor in not getting a borrow-pit for 
nearly a year after he should have got it. This item does not, of course, depend on 
change of grade or location, and so would not have come within the reference to the 
Registrar made by the Judge. The Court, however, on receiving the Registrar's report 
on the other items, could have dealt with this, and I am not prepared to say that the 
contractors are not entitled to an allowance for the loss sustained. 

On the whole, I think substantial justice to all parties has been done by the 
award and that it would be useless to move against it. 

I have the honor to be, Sir, 



The Hon. C. Tupper, 

Minister of Public Works. 



Your obedient servant, 

(Signed) Z. A. LASH, 

D.MiJ. 



Murray vs. Reqina. 
Statement. 

• 

Award of the Arbitrator, Samuel Keefer, on the merits of the case submittei 
to him, under the reference dated 23rd January, 1879, of the Petition of Right, Murray 
vs, the Queen, for Section 19 of the Intercolonial Railway. 

This is a claim for work performed on this section under the directions of th^ 
Oovernment Engineers, amounting to $150,000 over and above the amount paid the ^ 
on their contract. 

It is proper to state that every facility was granted to the Arbitrator to enab "-^ 
him to perform his onerous duty in the raost satisfactory manner. All the oflSci^ 
plans and documents in the possession of the Department of Public Works in relaticr^ 
to this section wore placed at his disposal, in a room specially set apart for his u^^ 

103 



42 Victoria. Sessional Papers (No. 42.) A. 1878 



^nd convenienco. Supplementary to these papers, he was likewise furnished on the 
24th January, 1879, with the evidence taken before Exchequer Court, together with 
the exhibits filed in that Court, thus embracing all the information concerning this 
<;iaim then in possession of the Government and the Court. 

The Arbitrator, having entered upon his duties, found it necessary at once to 
apply for professional assistance to enable him to check measurements given in 
evidence, and get through with his work within the two months allowed in the 
reference. This was immediately granted by the Minister of Public \Yorks, and a 
competent and confidential engineer was detailed for this service; one in no way 
previously connected with the Intercolonial. 

From the documents and evidence the following information is derived : 

The original contract was taken by Samuel Parker Tuck, C.E., for the bulk sum 
>f 8395,733, including the bridge over the Ilestigouche Eiver. It was dated 15th 
Tune, 1870, and the time for completion was fixed for the 1st July, 1872. The work 
was begun and prosecuted by Tuck until August, 1871, up to which time he had been 
^aid $51,000 for the work he had done on this contract, when it was transferred to 
Boggs & Murray b}' contract dated 2nd August, 1871, and Tuck relieved from further 
obligation. 

The amount of Boggs & Murray's contract was $344,733, being the unpaid 
balance of tlie original contract of $395,733 — Boggs & Murray binding themselves to 
iarry out the terms of the original agreement with Tuck, even to tho date of com- 
pletion, which remained unchanged, while they were liable also to tho same forfei- 
'Ures of $2,000 a week for every week the work remained unfinished after the said 
Ut July, 1872. The securities were Mitchell & Pake, who it appears carried on the 
vorks for and in the name of Boggs & Murray. 

The Eestigouche Bridge was subsequently sub-let to Martin Murphy with the 
consent of the Chief Engineer, the Commissioners and the Minister of Public Works — 
ill agreeing that the sum of $116,000 be deducted from the contract price for this 
>ridge, thus leaving $279,733 as the amount of Boggs and Murray's contract, including 
he $51,000 paid to Tuck. 

These arrangements were all made between February and June, 1873, whereas 
>y the terms of the contract all the work should have been completed by the 1st 
luly, 1872, of the previous year ; in point of fact, the contract for this section w^as not 
'ompleted until late in 1874— more than two years after the time fixed for com- 
pletion — and was not finally taken off the contractors hands until the spring of 1875, 
vhen the ballasting was begun. Towards the end of their work, the contractors got 
nto difficulties, failed to pay their men, and the Government, to avoid trouble, 
idvanced money, paid the men, and charged the amount against the contractors. 

Thomas Boggs died in March, 1873, and thereafter the work was carried on by 
John R Murray in the name of the firm. 

The official statement of their account after the work was taken off their hands, 
as given by the Superintendent of Jtuilwayw, dated 2nd September, 1875, and is as 
follows : — 

Original bulk sum of contract, less the original cost of the 

Eestigouche Bridge $279,733 00 

Addition authorized and recognized 7,682 00 

$287,415 00 

Deduct — wooden bridges not built $1,200 00 

Diminution of work by chan-cs 5,185 40 

6,385 40 



Total amount of work $i81,029 60 

Total amount of payments to 30th June, 1875 293,o44 81 

Overpaid $12,315 21 

101 



42 Victoria. Sessional Papers (No. 42.) A. 1879 



Tho defence rested on this statoraont. All additions or deductions for change of 
time or grade having been considered by the en^irineers, and brought in to this account. 
Afterwards, however, when tho Superintendent of Hallways gave evidence in the 
Exchequer Court, ho said he ought to have doiuctel tho further sum of $2,440.50 for 
unfinished bank, thus making this over-payment $14,755. 

On the other hand, the contractor in his petition of right, dated June, 1S76, in 
the Exchequer Court, claims 8150,000. Ho sits forth in his petition a statement in 
38 itoms of tho gross amount of the work, $470,007, exclusive of tho Eestigouche 
Bridge rates, tho contract and specifications, and pleads in ten paragraphs that 
failure to complete any sooner was caused by the fault of tho Eoginoers, while they 
were required to perform a great amount of extra work not embraced in this con- 
ti;act, or in the original bill of work. 

The demand is met in Court by the Attorney-General, on behalf of Her Majesty, 
by a distinct denial in 22 paragraphs ; he maintains that all the claims set up by the 
petitioners had been considered and rejected by those Commissioners, and therefore 
the contractors were not entitled to any further payment. This reply was fiyled in 
the Exchequer Court on the 19th October, 1876, and is signed by A. P. Mc In tyre 
for the Attorn ey-Grenoral. In it tho Attorney-General craves leave to deduct an 
offset of $2,000 a week, amounting to $150,000 against tho claim for non-completion 
within the time agreed upon. The petitioner replies to this defence on the llth 
January, 1877, taking issue upon the same, alleging that the Commissioners exoner- 
ated and discharged the suppliant from such penalty, waived and rescinded tho sanae. 
States further that this delay was caused by the negligence, misconduct, delays and 
laches of the said Commissioners, their Engineers and officers. 

In the Exchequer Court on the 29th January, 1877, the Attorney-General joins 
issue on tho suppliant replication. The Chief Justice, on the 2i)th April, 1877, orders 
a hearing before a Judge of tho Exchequer Court at Otiawa, on tho 20th May, 1877. 
Judgment (interlocutory) was given after this hearing by Judge Fournier, 2Jnd 
June, 1878. 

His Lordship says, that the suppliant's claim is for $470,000, as before stated, 
and is accompanied by a detailed statement. Thai it far exceeds the original claim 
which arises from the introduction of several new items, and from not giving credit 
for fhe $293,344 paid in settlement of their claims. But he fails to mark that the 
-claim is made out at schedule prices instead of tho bulk sum, and so adds about nearly 
twenty percent, to the latter, which alone is to be taken, and not the schedule rates. 
He directs particular attention to the fourth claim of the contract relating to the 
monthly progress estimates. This is admitted on the part of the Crown that there 
have been alterations both in grades and in the line of location, but it is stated that 
the Commissioners took account of these and recommended payment of $7,682 for tho 
extra work done, which is included in these payments made from time to time, 
amounting in all to $293,344 as before stated. 

His Lordship refers to the evidence relating to alteration of grades and alignments 
in order to ascertain : 

1st. If there have been such changes of what they consist; and if these charged 
have been taken into account according to the terms of tho contract. 

2nd. If the division, or rather the order for payment made by the Commissioners ^ 
•or the certificate granted under such circumstances, as established by the evidence ic^ 
this case, can be considered as having the effect of a final and binding decision. 

He then adduces the evidence of the Engineer in charge to prove the nature ancS 
<5ause of the changes that had been made, both in grade and location ; changab whicfc:^ 
his Lordship had before stated were admitted on the part of the Crown, but h^ 
attaches undue importance to the off-hand manner in which the monthly progres ^ 
estimates were made by the Engineer. Thinks he could have made careful measure- 
ments every time and been particular to distinguish extra from contract work, a- 
effected by these changes and situations, and that the Engineer-in-Chief must bas^ 
his final estimate on those progress estimates. In this he misconceived tho practio^ 
and the duty of the Engineer. The final estimate does not depend upon the progre»- 

102 



42 Vietona. Sessional Papers (No. 42) A. iS79 



estimates but upon an independent series of fact*', the data furnished by the first and 
last measurement of the ground, the difference between these giving the total quan- 
tities of work performed and being an effectual check upon the progress estimates. 
Doubtless the payment for extras, as he says, necessarily supplies the obligation of 
keeping acpurato accounts by measurement of the increase and of the diminution of 
the work, but not in the way His Lordship imagines. It is not duo monthly. As 
regards totals, it can only be done, as before stated, by comparing the original sections 
with the final completed section when the work is finished. If then the line or grade 
have been altered or changed, tho^quanti ties reprosecuted in the original bill of works 
will also be changed and the sections will receive the changes. But no such final 
estimate was ever made. The functions of the Eailway Commissioners having 
ceased and determined on the 26th May, 1874, by Statute, the Minister of Public 
AVorks on the 14th December, 1874, instructed the Engineer-in-Chief to have a re- 
measurement made of the works done where there had been deviations. This order 
has not been complied with, but the fact of it being made, stands as evidence that no 
final decision had been arrived at in this case, up to that time, and so His Lordship very 
justly regards it. 

His Lordship directed " the Kegistrar of the Court to obtain such legal evidence 
as can De adduced by the parties, for the purpose of getting the number and quantity 
of alteration of the location and of the grade which either increased or diminished 
the works under the contract, and of ascertaining the value of such increase or di?nin- 
ution, and the balance which may be due to either party after these operations. Costs 
reserved." 

This order has 'not been complied with by the Registrar, and it does not 
appear that any further steps were taken to affect a settlement of the claim until 
January, 1879, when, at the request of the Minister of Public Works, the undersigned 
came to Ottawa to find that the parties had agreed to refer the whole matter to him 
as sole arbitrator. Previous to that, he had no knowledge whatever either of the peti-' 
tioner or of the nature of his claim. The agreement was signed in his presence, on 
the 23rd January, 1879, by A. F. Mclntyre, on the part of the Crown, and by Gr. J. 
O'Doherty, on the part of the petitioner. 

From His Lordship's judgment, from a perusal of the evidence and exhibits before 
the Exchequer Court, from an examination of the plans and documents in the Public 
Works Department ; in fact, from all the evidence so far adduced, it was apparent that 
the case for the defence was bad ; but, while it was not sustained, neither had the case 
for the petitioner been established ; and the whole matter for enquiring seemed at 
first sight to be in inextricable confusion. 

Further evidence was necessary. That given by the Resident Engineer before 
the Exchequer Court — too contradictory to be depended upon. 

It was hoped that when called before the Arbitrator and examined by an engineer 
it might be more consistent. On the other side, the evidence given by the contrac- 
tors' engineer was only fragmentary, and by no means conclusive. He was called 
for further examination. The Division Engineer, the officer immediately above the 
Hesident, was likewise called to explain certain measurements and estimates ho had 
made on this section, and the Counsel for the petitioner called up R. P. Mitchell for 
further evidence. The evidence of all these parties was taken down by a steno- 
grapher, Counsel for both parties being present at every examination. 

This (?vidence, herewith submitted, may be considered on the compliment of that 
adduced before the Exchequer Court, and both taken together as sufficient, under the 
■plain conditions of the contract, to enable the Arbitrator to arrive at a proper solution 
of all the questions pending between the contractor and the Crown. 

But wiiile the contract is the only sure guide, the right explanation of it must be 
sought in the consideration of the circumstances under which it was let, and the 
nature of the conditions imposed upon the contractor. 

The Engineer furnishes a bill of all the works to be done on the section as a basis 
for lender; but in doing so he distinctly disclaims any responsibility for its correct- 
ness. Notwithstanding all the pains taken with the survey, he gives the result only 

103 



42 Victoria, Sessional Papers (No. 42) A. 187! 



ac 



as the best information he has, and puts it on the contractor to satisfy himself as to 
the correctness of the quantities. There is a schedule of prices corresponding with 
the different classes of work to be performed, but there is also a bulk sum which ista 
govern and limit the amount of the contract. 

Ordinarily the contractor does not make a re-survey in order to satisfy himself. 
He naturally accepts the work done under the Government as done in good faith, and 
ventures his money in the contract, relying upon the information Government hast 
placed before him, and upon his practical skill for the execution of the works. 

Provision is made in the contract for any change of line or grade that may b& 
found necessary, by which justice is to be done to the contractor — adding or deducting- 
from the contract, accoixling as more or less is called for by the change. Provision 
is also made for the errors and omissions that may be found in the original bill of 
works, shall be covered by five per cent, of the contract, which is included in the bulk 
sum, and is understood at once to cover and limit all contingencies of this nature. 

In his petition of right, ihe contractor has made up his account in gross, taking^ 
total quantities at schedule rates, and giving no credit for any payments on account, 
thus ignoring the bulk sum of his contract. This cannot be admitted. It is distinctly 
stated in the contract the schedule is only given " for the information of the Commis- 
sioners, and is not in any way to effect the contract." 

The contract must bo respected ; nothing can be done under this reference with* 
out it. 

It is in accordance with right that the contractor performs all the work he agreed 
to do within his contract, no matter whether that sum is exceeded or not by the appli- 
cation of the item prices to it. If this cannot be done the contract system isafailare* 
But it is also in accordance with right that he should be paid fair prices for all the 
work done outside, or over and above the requirements of his contract. 

The amount of the contract based upon the original bill of works, calculated at 
schedule rates, would be $342,231, exclusive of the bridge ; but since the schedule i» 
not to govern, it is the bulk sum of the contract that must be taken, and this, includ- 
ing the five per cent, for errors and omissions, is $279,733, showing an excess of 
$62,198 at schedule rates. All the prices would have to be reduced 18^ per cent, 
uniformly to make them agree with the contract. 

As regards the measurement, it appears from the document-* and evidence that 
the original bill of works was made up from data furnished by the survey of Eobert 
Shanly, and that in point of fact, the Resident Engineer afterwards placed in charge 
of this section never made any actual re- measurement of it, nor even of the comple- 
tion ; because, as he frankly stated before the arbitration, he considered it unnecessary 
when there was a bulk sum contract, though he went on making changes that 
increased and reduced the quantity of work. 

He never kop*i any proper record of the changes, and is unable now to furnish 
the necessary details. His last return (Exhibit B P, 3rd May, 1875, Exchequer 
Court) is not a proper final estimate either in form or substance. It is disfigured by 
many errors, and not being based on actual measurement, cannot be accepted as a 
whole, although, in part, where confirmedby other evidence, it has been found of some 
use. 

All information which the records of the Public Works Department could furnish 
— the evidence taken before Mr. Justice Fournier, and the evidence taken at the arbi- 
tration have been carefully weighed and considered, except where the Government 
Engineers have admitted a claim as an extra, and with the exception of the $I,00O 
allowed for the item No. 36, the following amounts allowed to bo deducted from the 
petitioners claim are found to be the results of changes of grade or location. 

For convenience, it miiy be assumed that the contract was completed in the fj^^^ 
of 1874, and finallv accepted and taken off the contractors' hands in the spring oi 
1875. 

The amount of the contract exclusive of iho Kestigouche 

Bridge is $279,7.i3 00 

1C4 



i Victoriju Sesrional Papers (No. 42) Ai 1879 



Add for extra work outside coutract. For items see petitions 

of right. 
Item 1. Clearing and close- cutting. No increase. 

2. Grubbing. No increase. 

3. Fencing. do 

4. Earth excavation : Odell returns, 455,728 cubic yards ; 

the original bill of work given, 427,000 cubic yards, 
less 2,170 cubic yards appropriated to the Eesti- 
gouche Bridge, thus showing an increase of 30,8^8 
cubic yards; value 9,269 40 

5. G, 7, 8. Bush excavation : Odell returns lor these four 

items, 81,381 cubic yards; original bill of work 
given, 57,500 cubic yards — the increase 23,881 cubic 
yards. Part of this is ordinary rock excavation ; 
part due to changes of line or grade, and part to 
taking up of bottom after the «vork had been finished 

to first grade; value .^ 34,034 80 

9. Under-drains. See deductions at end. 

10. Catchwater drains, 10,772 lineal feet. As the bill of 

works includes these drains by cubic measurements 
they are deducted above, so these must be added to 
the total; value 969 40 

11. Eip-rap, 6,800 cubic yards — Bill of work. 

12. do 5,178 do 11,978 cubic yards. It 

was proved by Mitchell and Grant, and may 
have been by Odell's details, that he omitted 
the work between Stations 480 foet to 494, equal to 
1,800 cubic yards, making in all 13,778 cubic yards 
less bill of work, 6,800 cubic yards ; increase, 6,978 
cubic yards; value 6,978 00 

13. Cri b-wharfing, 40,000 cubic yards — Bill of work. 

14. do 6,207 do increase, The resi- 
dent Engineer makes the total quantity 29,650, 
Odell 46,207, and L. G. Bell, 53,041 cubic yards; 
Odeirs is the only actual measurement, showing 

increase, 6,207 cubic yards ; value 12,414 00 

15. First-class masonry in lieu of second. This proves 

that there has been a saving of 848 cubic yards of 
second-class masonry : on the other hand, all the 
second-class masonry has been made first-class, ex- 
cept 200 cubic yards, leaving 2,100 cubic yards 
raised from second to first ; value 6,220 00 

16. Paving 500 cubic yards. No allowance. 

17. Concrete 400 cubic yards. No allowance. 

18. Earth excavation in foundations. No allowance. 
V,), Rock excavations in do do 

20. Pine timber in beam culverts do 

21. Eoad diversion at Station 460 ; claim $1,500 ; Grant 

reports this as extra, not included in bill of works, 

value 1,010 

22. Eoad diversion, Station 320, 299, claim $2,000. This is 

included in bill of works. No allowance. 

23. Blasting and removing rock from Stations 453, 465, 

12,018 cubic yards ; claim $15,022.50. This is for 
work outside of railway line, and outside contract. 
Grant returns it as 6,900 cubic yards. This recog- 

105 , 
42 i—S 



42 Victoria. Sessional Papers (No. 42.) A. 187 



nized by W. Schreiber in his report 28th Juno, 
1878. It is not included in Odell s measurement. 
Allowance according to Grant 7,590 

24. The Diorite Quarry. First claim, $12,187.50, ruled out 

by the Judge. Second claim, $1,637.50, falls under 
contract, is for hauling the stones away. Work 
was performed by Engineer's orders. Amount 
proven 1,637 20 

25. Cash paid Fraser for borrow-pit. Claim admitted 200 00 

26. Labor at station ground, Station 603. Claim admitted 92 00 

27. Overhaul from Stations 516 to 495. Claim, $4,198.60. 

Grant's estimate accepted; allowance 1,050 

28. Piling and protection on Fraser's Flat. Claim, $7,825 

'J'his is for work performed in lieu of crib-wharfing 

and is recognized by Engineers as extra ; allowance. 7.506 

29. Eoad diversion at Station 1 14. Claim 1,208. This diver- 

sion is caused by change of line between Stations 

96 ard 120. The proper value of it is 1,155 

30. One set of cattle guards. Station 520. Claim, $300. 

This is also included in contract. No allowance. 

31. One set of cattle guards. Station 509. Claim, $150. This 

is also included in contract. No allowance 

32. Building crib-wharfing Stations 248, 253, $1,250, in- 

cluded in contract. No allowance. 

33. Ke-building crib-wharfing, same plan, $1,250. This is 

also included in contract. No allowance. 

34. Fencing station ground with better fence. Admitted 160 

35. Extra expense sloping rock cut. Stations 453, 465, 

$5,000. This rock is included in Odell's measure- 
ment ; the charge is additional for returning to slope 
it a second after it had first been taken out to the 
prescribed slope. The quantity has been chequed. 

36. It is fair to allow $5,000 loss for not getting bor- 

row-pit. Station 480-506 5,000 

Claims for delay, $2,000. 

It is fully proven that there was a delay of nearly a 
year in surveying the land. Afier hearing counsel 
for both parties on this item, and leai'ning that 
there had been a decision in the Exchequer Court 
(Isbester vs. the Queen) recognizing a similar 
claim, it was deemed right to allow half of this 
claim for damage by detentions. Allowance 1,000 

37. Soft bottom not in our sections; Stations 410, 420, 

495, 502, 148, 170 ; claims $5,850. This is a repe- 
tition of the claim ; a claim beyond OdelTs mea- 
surements. Claim disallowed. 

38. Loss sustained by not receiving prompt payment of 

the estimates, $5,000. Claim not allowed. 

Total $376,018 88 

Deductions, 

For two 40 feet bridges, superstruction not built ; contract 
price $2,400 less. Extra cost of masonry provided 

for $1,200 $1,200 00 

For unfinished bank when work was taken off contractors 
hands, $2,440, less overland for the half bank 

made,$l,220 1,220 00 

106 



I Victoria. Sessional Papers (No. 42) A. 1879 



■V 



For under drains, bill of work, 2,000 lineal feet; Odeir^ 

measurement 1,346 ; saving of 654 65 40 

Total amount of contract and addition 373,523 48 

Payments on Account, 

Payments by Ledger 293,710 84 

Less ($162.72). $90 charge for powder for blasting rock 
in Metapedia River not chargeable against con- 
tractors, «90 293,620 84 

Balance 79,902 00 

Award to petition 79,900 OJ 

As to the question of interest it is undoubtedly a fact that if anything was due 
) the contractors, it was due at the time the work was taken off their hands ; that 
me is not definitely stated. The Superintendent of Railways says it was in the 
pring of 1875 when the ballast trains commenced operations. The time being 
►oiowhat indefinite, it might bo assumed as four years up to the date of payment, if 
lade within a reasonable time. 

Had this been a contract between individuals or corporations, it would be right 
) allow interest, but as between the Queen and a subject, there can be no statutory 
bligation. It rests with Her Majesty and Council to decide upon the question of 
iterest as in their wisdom they may seo fit. The Arbitrator would allow interest, 
ere it in his power to do so. 

The costs of this arbitration must follow the award. Having found that the poti- 
oner is rightly entitled to an award in his favor, it is right he should be paid such 
asonable costs as are usual on such occasions. 
The arbitrator's fee should also be paid by the Crown. 

Concluding Remarks. 

The Government Engineers by a strict interpretation of a stringent contract 
)und that the contractors had been overpaid the sum of $14,754 (^see report of supor- 
itondent of railway's, 12th May, 1876,), while by the evidence adduced before the 
rbitrator, and the intrepretation he has given to the same contract, he finds there 
'as due to the contractors when the work was taken otf their hands the sum of 
7^,900. This difference is accounted for mainly by the fact that the Grovernment 
ngineers never made any final measurement of this Section after the work was 
one, and never kept any proper record of the changes that were made during its 
regress. The Minister of Public works depended upon the Superintendent of Rail- 
ays for the proper administration of his Department. The Superintendent of 
ailways depended on the Engineer-in-Charge of the Intercolonial for all measure- 
lents and estimates of work performed, having the bulk sum always in view. The 
Dgineer-in-Charge of the whole line depended on the measurements of the Resident 
Ingineer on the Section, and the Resident Engineer in a rope of sand, and so the 
'hole edifice fails to pieces. The defence breaks down before the Exchequer Court, 
nd the Government has no final measurement to lay before the Arbitrator. 

Deluded by the idea that a bulk sum contract covered everything, the Resident 
Ingineer did not think it necessary to keep track of the measurements. True, in a 
ertain way, he pretended to do so. But while he made returns showing the effect 
f certain changes, they were not founded on any visible data, and he admits in his 
vidence before the Arbitrator that he was •* perfectlj' at sea as to the quantities." 

The Arbitrator could, therefore, place no reliance on his returns, except in cases 
?^here he finds other proof to confirm them. He is obliged to fall back on the better 
nd more reliable evidence — the only reliable measurements of a competent Engineer, 
^hose calculations, founded on actual measurement, have been verified, and since 
bey are made on data furnished by the Engineer Department, and are sworn to, ho 
^ Warranted in adopting them as the basis of his award. Without these measure- 
'ionts, in fact, it would have been impossible to proceed a single step. 

(Signed) SAMUEL KEEFER, C.K. 

Arbitrator^ 
107 



''ictoria. Sessional Papers (No. 42.) A. 187» 



RETURN 

(42j) 

in Order of the House of Commons, dated 20th February, 1879 ; — 
For a Return in detail of the Fund known as the " Intercolonial Rail-^ 
way Employes Insurance Fund,' V shewing : 1st. Amounts collected 
from Railway employes monthly since its inception (October 1st., 1874) 
to 1st. February, 1879. 2nd. Amount paid by Railway Department to 
said Fund. 3rd. Amounts paid out on account of said Fund, (a) 
Number and amount of death claims in each class, name of person, 
employment and cause of death, (b) Number of weeks indemnity paid 
under each class, party to whom paid, date and cause of accident, (c) 
Amounts, if any, paid to non-subscribers, names, dates and reasons for 
such payment. 4th. Statement of amount now at credit of said Fund, 
when and to whose credit deposited. 5th. Statement of Railway 
employes who are exempt for contributing to the Fund .and reason for 
such exemption. 6th. Statement of claims against said Fund unpaid^ 
by whom made, and cause of non-payment. 7th. Copies of all corres- 
pondence on the subject. 

By Command. 

J. C. AIKINS, 

Secretary/ of StaU. 

•ARTMENT OF THE SECRETARY OF StATE 

Ottawa, 8th May, 1879. 



iccordance wilh the recommendation of the Joint Committeelon Printing, the above 

Return is not jrinted,'] 



42 Victoria. Sessional Papers (No 42.) A. li 



RETURN 

(42k) 

To an Order of the House of Commons, dated 24th March, 1879 ; — ] 
a statement of damages to cattle and goods on the Intercolonial 'Ri 
way paid during 1878, shewing date when such claim was first mad 
the disposition made of it at the time ; the date of payment, and w 
paid, and date of claim made. 

By Command. 

J. C. AIKINS, 

Secretary of State. 
Pepartment of the Secjretary of State, 
Ottawa, 8th May, 1879. 



RETURN 

(42L) 

To an Order of the House of Commons, dated 31st March, 1879 • — I 

copies of all correspondence, petitions and reports, between Hen 

Clarke, Esq., of Truro, and the Department of Public Works, or t 

ojficers of the Intercolonial Railway, in reference to his claim : 

property destroyed by the officers of the Intercolonial Railway. 

By Command. 

J. C. AIKINS, 

Secretary of State. 
Department of the Secretary of State, 
Ottawa, 10th May, 1879. 



[Tn accordance with the recommendation of the Joint Committee on Printing, the ahi 

Returns are not printed^] 



42 Victoria. Sessional Papers (Nos. 42 and 43.) A. 18T» 



RETURN 

(42m) 

To an Order of the House of Commons, dated 16th April, 1879 ; — For 

Statement of all complaints made against J. D. Bouchard, Station 

Master of St. Simon, and the reasons for which he was discharged from 

his office. 

By Command. 

J. C. AIKINS, 

Secretary of State. 

Department of the Secretary of State, 

Ottawa, 14th May, 18*79. 



ARTICLES 

(43) 

'Of Agreement entered into between Heney, Charlebois & Flood, and Her 
Majesty Queen Victoria, represented by the Minister of Public Works 
of Canada, to do the excavation, tracklaying, &c., of G-eorgian Bay 
Branch of Canadian Pacific Railway, from Station 0, South River to 
French River, 50 miles, 3*7th contract. 



'[In accordance with the recommendation of the Joint Committee on Printing, the above 

Return and Agreement are not 'printed,'] 



42 Victoria. Sessional Papers (No 43.) A. 187» ^ 



ARTICLES 

(43a) 

Of Agreement entered into between Kavanagh, Murphy & Upper and Her ' 
Majesty Queen Victoria, represented by the Minister of Public Works 
of Canada, to do excavation, grading, tracklaying, &c., of part of 
s Pembina Branch, between St. Boniface and Emerson, Canadian Pacific 
Eailway, 32nd contract. , 



» 



copy 

(43b) 

Of Agreement by Joseph Whitehead {13th September, 1878), to mak^ 
embankments on Sifton, Ward & Co's Contract, No. 14, Canadian 
Pacific Railway, at a less cost to Grovernment than per contract of 
Sifton, Ward & Co., No. 4*72 accepted by the Minister of Publi(^ 
Works, 8th October, 1878 ; and further agreement by Joseph^ 
Whitehead. 



Of 



tin accordance with the recommendation of tlie Joint Committee on Printing, the alx^^ 

Agreements are not printed.'] 



V